IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110006410 


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.

2.  The applicant states he is deeply embarrassed by his actions upon his return from the Republic of Vietnam (RVN).  He did not represent the Army in the best light as a young man and for that he is deeply sorry.  He was 18 years of age when he deployed to the RVN and his record of service there was impeccable.  His grave errors in judgment occurred upon his return from the RVN and started with problems at home with his mother.  In 1974, he met his wife and his life began to change in a positive way.  He has been a pastor for 31 years, as well as a prison chaplain and he has been a productive citizen for the past 36 years and loves his country which he would gladly serve again if he could.

3.  The applicant provides five character reference statements in support of his application.

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 22 May 1968.  He was trained in and awarded military occupational specialty (MOS) 05C (Radio/
Teletype Operator).  On 31 August 1970, he was honorably discharged for the purpose of immediate reenlistment.  On 1 September 1970, he reenlisted in the RA for a period of 4 years.

3.  The applicant’s record shows he was advanced to the rank/grade of specialist four (SP4)/E-4 on 11 November 1969, and that this is the highest rank/grade he attained while serving on active duty.  It also shows he served in the RVN from
1 September 1969 to 3 September 1970.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* RVN Campaign Medal with Device (1960)
* Army Commendation Medal
* Army Good Conduct Medal (1st Award)

5.  The applicant’s disciplinary history includes his accrual of 179 days of time lost during three separate periods of being absent without leave (AWOL) between 27 November 1970 and 17 July 1971.  It also includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions between 30 November 1970 and 27 July 1971; and a special court-martial (SPCM) conviction on 18 March 1971.

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does include a properly-constituted DD Form 214 that shows the applicant was discharged 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.  It further shows he completed a total of 7 months and


11 days of the enlistment under review and 2 years, 10 months, and 21 days of total active military service with 179 days of time lost due to AWOL.

7.  The applicant provides five character reference statements attesting to his good character and post-service conduct.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  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.

10.  Paragraph 3-7a of the same regulation 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.

11.  Paragraph 3-7b of the same regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge has been carefully considered.  However, there is an insufficient evidentiary basis to support this claim.


2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include various documents and a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  It appears 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.

4.  The applicant’s record properly documents his honorable service in the RVN in the first DD Form 214 he was issued upon his discharge for reenlistment on
31 August 1970.

5.  The applicant’s post-service conduct and accomplishments are noteworthy, as attested to in the character references statements provided with his application; however, his record confirms an extensive disciplinary record during the enlistment under review.  This misconduct included his accrual of 179 days of time lost due to AWOL; his conviction by an SPCM; and his acceptance of NJP on two separate occasions.

6.  Based on his misconduct during the period of enlistment under review, the undesirable discharge he received was normal and appropriate under the regulatory guidance in effect at the time.  Therefore, there is an insufficient evidentiary basis to support an upgrade of his undesirable discharge at this late date.


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)                                         AR20110006410



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ABCMR Record of Proceedings (cont)                                         AR20110006410



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