Search Decisions

Decision Text

ARMY | BCMR | CY2011 | 20110010234
Original file (20110010234.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110010234 


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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states his UD should be upgraded based on his two prior periods of honorable service, and based on the fact he suffered from major depression and Post Traumatic Stress Disorder (PTSD) resulting from Vietnam service.  

3.  The applicant provides no documentary evidence 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’s record shows he initially enlisted in the Regular Army (RA) on 23 January 1970, and was trained in and awarded military occupational specialty (MOS) 31B (Radio Mechanic).  On 19 January 1972, he was honorably released from active duty (REFRAD), in the rank of specialist four (SP4), and transferred to the U.S. Army Reserve (USAR).  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that during this period of active duty service he served in the Republic of Vietnam from 16 July 1970 through 15 July 1971, and he earned the following awards:

* National Defense Service Medal (NDSM)
* Army Commendation Medal (ARCOM)
* RVN Campaign Medal with 60 Device
* Vietnam Service Medal (VSM) with 1 bronze service star

3.  The record shows the applicant served in the USAR and Army National Guard (ARNG) through 14 March 1973, and on 20 July 1973, he again enlisted in the RA for three years.  

4.  The applicant’s disciplinary history for the enlistment under review includes a 17 September 1973 summary court-martial (SCM) conviction for violating Article 89 of the Uniform Code of Military Justice (UCMJ) by behaving with disrespect toward his superior commissioned officer on or about 6 August 1973.  

5.  The applicant’s record is void of any medical treatment records or other documents indicating the applicant suffered from any physically or mentally disqualifying medical condition while serving on active duty.  

6.  On 23 October 1973, a DD Form 458 (Charge Sheet) was prepared preferring  court-martial charges against the applicant for two specifications of violating Article 91 of the UCMJ by disobeying a lawful order and being disrespectful in language toward a superior warrant officer on or about 11 October 1973; and violating Article 86 of the UCMJ by going from his appointed place of duty without authority on or about 11 October 1973. 

7.  On 31 October 1973, the applicant consulted with legal counsel and after being advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

8.  On 13 November 1973, the separation authority approved the applicant’s request for discharge and directed he receive a UD.  On 19 November 1973, the applicant was discharged accordingly.  
9.  On 30 September 1983, the Army Discharge Review Board (ADRB) after carefully considering the applicant’s case determined his discharge was proper and equitable and voted to deny his request for an upgrade of his discharge and a change to the narrative reason or discharge.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) discharge is normally considered appropriate.  At the time of the applicant’s discharge a UD was issued for members separating UOTHC.  

11.  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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge because of his prior honorable service and based on his suffering major depression and/or PTSD has been carefully considered.  However, there is no evidence to support this claim.

2.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It also shows he consulted with legal counsel and it was only after being fully advised of the effects of a UD that he voluntarily requested discharge.

3.  The applicant’s record properly documents his prior honorable service, including his combat service in the RVN, in the first DD Form 214 he was issued upon his REFRAD on 19 January 1972.  However, his record reveals a disciplinary record during the period of enlistment under review that includes an SCM conviction in addition to the court-martial charges that resulted in his discharge.  It further confirms he  voluntarily requested discharge to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge. 

4.  Based on the applicant's misconduct during the period of enlistment under review, the UD he received was normal and appropriate under the regulatory guidance in effect at the time.  Therefore, there is insufficient evidentiary basis to support an upgrade of his UD at this time.  

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)                                         AR20110010234





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110010234



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2009 | 20090008226

    Original file (20090008226.txt) Auto-classification: Denied

    The DD Form 214 issued to the applicant shows he was separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of court-martial, and that he received an UD. On 20 February 1975, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable, and it voted to...

  • ARMY | BCMR | CY2006 | 20060009843

    Original file (20060009843.txt) Auto-classification: Denied

    The Board considered the following evidence: Exhibit A - Application for correction of military records. The DD Form 214 issued to the FSM on 4 April 1973, the date of his discharge, confirms he was separated UOTHC under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial. Records show the alleged error or injustice now under consideration on should have been discovered on 4 April 1973, the date of the FSM's discharge, and...

  • ARMY | BCMR | CY2011 | 20110014984

    Original file (20110014984.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The record does include a properly-constituted DD Form 214 that shows the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations). There is no evidence of record showing the applicant suffered from PTSD or any other medical or mental condition that contributed to the misconduct that...

  • ARMY | BCMR | CY2009 | 20090002256

    Original file (20090002256.txt) Auto-classification: Denied

    The applicant's military personnel records show he was initially inducted into the Army of the United States and entered active duty on 8 November 1966. Although the separation authority may authorize a general, under honorable conditions discharge (GD) or HD, if warranted by the member’s record of service, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate for members separated under these provisions. The applicant has failed to submit evidence...

  • ARMY | BCMR | CY2012 | 20120010425

    Original file (20120010425.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). On 8 May 1970, the applicant was discharged accordingly. 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.

  • ARMY | BCMR | CY2011 | 20110023723

    Original file (20110023723.txt) Auto-classification: Approved

    However, the record does contain a properly-constituted DD Form 214 that shows he was discharged for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states that applicants do not have a right to a hearing before the ABCMR. His DA Form 20 confirms he was authorized the NDSM, VSM, RVN Campaign...

  • ARMY | BCMR | CY2011 | 20110023723

    Original file (20110023723 .txt) Auto-classification: Approved

    However, the record does contain a properly-constituted DD Form 214 that shows he was discharged for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states that applicants do not have a right to a hearing before the ABCMR. His DA Form 20 confirms he was authorized the NDSM, VSM, RVN Campaign...

  • ARMY | BCMR | CY2007 | 20070007788C080407

    Original file (20070007788C080407.doc) Auto-classification: Denied

    Counsel requests that the applicant's UD be upgraded to an honorable discharge (HD); and that the applicant be awarded the Overseas Service Ribbon (OSR) and National Defense Service Medal (NDSM). On 20 November 1973, the Army Discharge Review Board (ADRB), after carefully considering the applicant's military records and all other available evidence, determined the applicant was properly discharged and as a result denied the applicant's request for an upgrade of his discharge. Counsel's...

  • ARMY | BCMR | CY2011 | 20110014050

    Original file (20110014050.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The applicant requests an upgrade of his discharge to an honorable discharge (HD). His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge.

  • ARMY | BCMR | CY2005 | 20050000504C070206

    Original file (20050000504C070206.doc) Auto-classification: Denied

    The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD). On 30 October 1973, the separation authority approved the applicant’s request for discharge and directed that he receive an UD. On 20 January 1976 and 15 May 1981, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s case, determined his discharge was proper and equitable, and it denied his request for an upgrade of his discharge.