IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110013425 


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 an upgrade of his undesirable discharge (UD) to a general discharge (GD) or honorable discharge (HD).

2.  The applicant states:

	a.  He was away from home for the first time and initially had a hard time adjusting to military service, however; after completing basic training, he intended to be the best he could be and went on to complete advanced individual training without any problems.

   b.  He was subsequently reassigned for duty in Vietnam where the consequences of war such as living in a jungle, getting little sleep as a result of watching his back to stay alive, and the killing he witnessed began to mess with his mind.
   
   c.  He was the oldest child of six siblings and his mother depended on him to help rear his siblings and aide in the family's financial support because his stepfather did not provide much for the family.
   
   d.  He was more than 10,000 miles away from home when his mother starting writing to inform him his stepfather was abusing her and beating her all of the time.
   
   
   e.  Prior to being assigned to Vietnam, he did not use drugs, however with all that he was experiencing he began to rebel against his fellow officers not thinking that the situations could have been handled differently.
   
3.  The applicant provides a:

* Self-authored statement
* Two character reference statements

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 military record shows he was inducted into the Army of the United States on 20 November 1969.  He was trained in and awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  His DA Form 20 (Enlisted Personnel Record) shows he was promoted to the rank of private first class (PFC)/E-3 on 4 May 1970, and this was the highest rank he obtained while serving on active duty.  It also shows he was reduced to private (PVT)/E-1 on 22 November 1970.

4.  On 23 March 1970, he accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using disrespectful language towards a noncommissioned officer, while in the executing his duties as the first cook on duty on 20 March 1970.

5.  On 13 November 1970, a Special Court Martial (SPCM) convicted the applicant of disobeying a lawful order administered by a commissioned officer to prepare his equipment and join his company in the field. 

6.  On 11 January 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 90 of the UCMJ by disobeying a lawful order administered by a commissioned officer to get all of his equipment, get on the resupply vehicle, and report to the company commander for reassignment in the field on 6 January 1971.

7.  On 16 January 1971, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

8.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge.

9.  On 31 January 1971, the separation authority approved the applicant's request for discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UD.

10.  On 3 February 1971, the applicant was discharged accordingly in the rank of PVT/E-1.  His DD Form 214 shows he completed 1 year, 1 month, and 17 days of active military service for the period covered.

11.  On 16 December 1977, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and voted to deny his request for an upgrade of his discharge.

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

	a.  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 HD or GD is authorized, an under other than honorable conditions discharge is normally considered appropriate.  However, a UD was considered appropriate at the time the applicant was discharged.
	b.  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.

	c.  Paragraph 3-7b provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a GD or HD due to extenuating circumstance which included personal family problems.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for disobeying a lawful order administered by a commissioned officer.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Considering his disciplinary history which included one NJP and a SPCM conviction, his service clearly did not support a GD or HD.

4.  There is also no evidence that the applicant took any action to address any personal problems through his chain of command, the chaplain or by any other means.  He had many legitimate avenues he could have used to address his personal family problems without committing the offenses that led to his discharge.


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)                                         AR20110013425



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ABCMR Record of Proceedings (cont)                                         AR20110013425



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