IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20110000039 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he is not proud of what he did.  He was a good Soldier who served his country and received various decorations.  His drinking problem and attitude led to his problems.  He received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) and lost some pay.  Instead of righting the wrong, he went absent without leave (AWOL).  He has turned his life around and he would like his discharge upgraded.

3.  The applicant did not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army (RA) on 16 May 1968.  He completed training and he was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  He served in Vietnam from 5 March 1969 to 3 March 1970.  While in Vietnam, he was honorably discharged on 15 February 1970 for the purpose of immediate reenlistment.  On 16 February 1970, he reenlisted for a period of 6 years.  He was subsequently reassigned to Fort Leonard Wood, MO. The highest rank/grade he attained during his military service was specialist five (SP5)/E-5.

4.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) show the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Bronze Star Medal (2nd Award)

5.  His record shows he accepted NJP under the provisions of Article 15 of the UCMJ:

* On 15 February 1970, for failing to go at the prescribed time to his appointed place of duty on 15 February 1970
* On 10 August 1970, for assaulting another Soldier and for failing to go at the time prescribed to his appointed place of duty on 30 July 1970

6.  On 6 November 1970, he was convicted by a special court-martial of one specification of failing to go at the time prescribed to his appointed place of duty on 8 September 1970 and one specification of being AWOL from
8-28 September 1970.  He was sentenced to a forfeiture of $50.00 pay per month for 3 months, extra duties for 1 month, and reduction to private (PV2)/E-2. The convening authority approved his sentence on 23 November 1970.

7.  On 2 December 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 29 November to 1 December 1970.

8.  On 7 December 1970, he departed his unit in an AWOL status and on 5 January 1971, he was dropped from the rolls of his organization as a deserter.  He was apprehended by Federal authorities on 14 May 1971 in Nebraska and returned to military authorities.

9.  His record shows two more instances of AWOL, from 7- 20 June 1971 and
from 7-19 August 1971.  

10.  The court-martial charge sheet and separation packet are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 8 September 1972 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with a character of service of under conditions other than honorable and issuance of a DD Form 258A (Undesirable Discharge Certificate).  This form also shows he completed 2 years, 8 months, and 28 days of total active service with 627 days of time lost

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of 

under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 

are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  x _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110000039



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000039



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1