IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110012299 


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 that his undesirable discharge be upgraded.

2.  The applicant states he believes his discharge should be upgraded because he served honorably in the Republic of Vietnam (RVN).  He fought proudly for his country alongside his fellow Soldiers, putting his life on the line for approximately
1 year.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  On 5 May 1970, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 3 July 1970, the applicant departed Fort Ord, California for duty in the RVN.

	a.  On 17 October 1970, he was assigned, as a student, to the 23rd Administration Replacement Detachment.

	b.  On 30 November 1970, he was assigned as a rifleman with Company A, 4th Battalion, 3rd Infantry Regiment, 11th Infantry Brigade.

	c.  On 22 April 1971, he was convicted by special court-martial of disobeying a lawful order "to board a helicopter for transport to Firebase Sheppard."

	d.   He was confined with hard labor from 28 April to 25 May 1971.

	e.  On or about 26 May 1971, he was assigned as a rifleman with Company A, 1st Battalion, 61st Infantry Regiment, 1st Infantry Brigade, 5th Infantry Division.

4.  On 13 June 1971, charges were preferred under the Uniform Code of Military Justice (UCMJ).

	a.  Specification 1: disobeying a lawful command from a superior commissioned officer (a first lieutenant) "to pack his bags and go to Fire Support Base Charlie 2."

	b.  Specification 2: disobeying a lawful command from a superior commissioned officer (a major) "to be at the heli-pad at 1715 hours with weapon, steel pot, flak vest, and to board the radar-bird going to Fire Support Base Charlie 2 to join his unit there."

5.  On 17 June 1971, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  A copy of his request and legal consultation is not contained in the available records.

6.  On 27 June 1971, the applicant's company commander recommended approval of the applicant's request.  The commander stated the applicant had shown an earnest interest in doing small details in the company's rear area but displayed a lack of respect for his superior commissioned officers.  He refused to obey direct orders to go to the field twice.

7.  On 28 June 1971, the battalion commander recommended approval of the applicant's request stating that his lack of respect for the orders of his superior commissioned officers had created a hardship on his fellow Soldiers.

8.  On 9 July 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).  On 2 August 1971, the applicant was discharged accordingly.  He had completed 1 year, 2 months, and 1 day of creditable active duty service with 27 days of time lost.

9.  On 21 August 1978, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 90, for disobeying a superior commissioned officer in time of war, is a dishonorable discharge and death.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally appropriate.

	b.  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.

	c.  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 contends that his undesirable discharge should be upgraded because he served honorably in the RVN, where he put his life on the line for approximately 1 year.

2.  In the absence of evidence to the contrary, it is presumed that his discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His refusal to serve in the field was not fighting proudly for his country alongside his fellow Soldiers.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110012299



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ABCMR Record of Proceedings (cont)                                         AR20110012299



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