IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110014768 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD), under honorable conditions.

2.  He states he served a combat tour in Vietnam.  He was 19 years of age at the time that he got into some trouble and was given the choice of a UOTHC discharge or life in prison.  He contends he was not given any legal representation or an option for a court-martial.  

3.  He adds that since the time of his discharge, he has been a productive citizen and had lived a law-abiding life.

4.  He provided 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.  His record shows he enlisted in the Regular Army on 27 February 1970, at the age of 19 years.  After completion of training, he served in military occupational specialty 76P (Stock Control and Accounting Specialist).  He served in Vietnam from 8 September 1970 to 3 August 1971.

3.  His DA Form 20 (Enlisted Qualification Record) shows the following:

* Item 33 (Appointment and Reductions) – specialist four/E-4 was the highest grade he attained while serving on active duty
* Item 41 (Awards and Decorations) – he earned the National Defense Service Medal and Vietnam Service Medal 

4.  His record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 3 September 1970.  This form shows he was administered non-judicial punishment (NJP) for going absent without leave (AWOL) from 31 July to 31 August 1970. 

5.  A separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing is not contained in the available record.  However, there is a separation order and a DD Form 214 on file which identifies the authority and reason for his discharge.  

6.  Special Orders Number 217, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 5 August 1971 shows he was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10 (For the Good of the Service).  It was directed that he be issued a DD Form 258A (Undesirable Discharge Certificate). 

7.  His DD Form 214 shows he was discharged in the rank and pay grade of private E-1, on 5 August 1971, under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC characterization of service.  He had completed a total of 1 year, 5 months, and 9 days active military service. 

8.  His record does not contain any acts of valor or special recognition, and 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 limitations.  

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation stated a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge UOTHC was normally considered appropriate, but the separation authority may have directed a GD or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

10.  Army Regulation 635-200 stated a GD was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he was young at the time he got into trouble and was not given any other options than to take a UOTHC discharge or to spend life in prison.   

2.  His entire record of service was reviewed and his post service conduct was taken into consideration.  His record shows he was administered NJP for going AWOL.  His record contains no documentary evidence of acts of valor or special recognition that would warrant an upgrade of his undesirable discharge.

3.  His discharge packet is not available for review by the Board; therefore, there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  

4.  In connection with such a discharge, he would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army, in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ.  

5.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge was normally UOTHC and it is presumed that the reason for discharge and the characterization of service were both proper and equitable.

6.  Therefore, there is insufficient evidence to grant him relief in this case.
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)                                         AR20110014768





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ABCMR Record of Proceedings (cont)                                         AR20110014768



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