IN THE CASE OF:	 

		BOARD DATE:	       21 February 2012

		DOCKET NUMBER:  AR20110015349


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

2.  The applicant states:

	a.  he never departed absent without leave (AWOL) and was always at his place of duty;

   b.  he was drafted into the Army on 29 November 1965; completed basic and advanced individual training and was immediately assigned to Vietnam, served his country, and never did anything to bring disgrace to the Army;
   
   c.  he was accused of making a pass at a Soldier’s wife and after being assaulted by the Soldier, he pointed a pistol at him and would have pulled the trigger if the assault continued; and
   
   d.  knowing that her husband was wrong, the wife called the front gate to report her husband was going to hurt him.
   
3.  The applicant provides:

* a self-authored statement
* DD Form 293 (Application for Review of Discharge)
* Veterans Service Center Manager Letter
* VA Form 4107 (Your Rights To Appeal our Decision)

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 was initially inducted into the Army of the United States on 29 November 1965.  He was trained in and awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  He served the following two periods of honorable service and last reenlisted in the Regular Army on 16 August 1973:

* 29 November 1965 – 20 September 1967
* 21 September 1967 – 15 August 1973

4.  His DA Form 20 (Enlisted Qualification Record) shows he was promoted to staff sergeant (SSG/E-6) on 7 January 1970, and this was his highest grade held. It also shows he served in the Republic of Vietnam (RVN) from 2 May 1966 to 1 May 1967, and he earned the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Army Good Conduct Medal (3rd Award)
* RVN Campaign Medal with Device 1960
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar

5.  The applicant’s record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) four times on the following dates for the indicated reasons:

* 2 September 1967, failing to go at the time prescribed to his appointed place of duty
* 29 February 1968, departing AWOL on 29 February 1968
* 13 May 1969, dereliction
* 31 May 1974, operating a vehicle while drunk

6.  On 1 August 1975, a DD Form 458 (Charge Sheet) was prepared preferring four court martial charges against the applicant for violating the following articles of the UCMJ:

* Article 86 (30 July 1975) - failing to go to appointed place of duty at prescribed time
* Article 121 (30 July 1975) – wrongfully appropriating another Soldier’s 1970 Rambler valued at $1800.00
* Article 128 (1 August 1975) – assaulting another Soldier by aiming a pistol at him
* Article 92 (date unknown) – failing to obey a lawful regulation by not properly registering  his privately owned weapon

7.  On 4 August 1974, having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

8.  In his request for discharge he acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He admitted he was guilty of the charge(s) against him, or of lesser included offense(s).  He also indicated that he understood he could face substantial prejudice in civilian life because of his UOTHC.  He further elected to submit a statement in his own behalf wherein he indicated:

   a.  he had no problem adjusting to military service;
   
   b.  he was twice charged for offenses that were started by someone else;
   
   c.  he could not work in an Army that confined its senior noncommissioned officers and let the privates go free.


9.  On 15 August 1974, having considered the applicant's statement, the separation authority approved the discharge recommendation and directed that he receive a UD under the provisions of Army Regulation 635-200, chapter 10.  On 20 August 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms that he had completed 9 years, 8 months, and 5 days of total active service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  However, he submitted an application to the ADRB in conjunction with his application to this Board on 22 June 2011 after the ADRB's statute of limitations had expired.

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

   a.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC is normally considered appropriate.

   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 honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded.


2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge four times and after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  Although, he attributes blame for two of the charges to another Soldier, his request for discharge under the provisions of Chapter 10, Army Regulation 635-200, includes his admission of guilt of the offenses for which he was charged at the time.

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.  His service clearly did not support a GD or HD at the time of his discharge and it does not support an upgrade now.  As a result, there is an insufficient evidentiary basis to support an upgrade of 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)                                         AR20100021823



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ABCMR Record of Proceedings (cont)                                         AR20110015349



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