IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016280 


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.

2.  The applicant states he enlisted in the Army and volunteered for assignment to Vietnam.

	a.  He deployed to Vietnam where he was a vehicle driver.
 
	b.  He states there was racial tension in the unit and he was threatened.  He requested transfer to a new unit; however, he continued to be threatened by other Soldiers.

	c.  When he was in Saigon he was stopped at the base inspection area.  One of the gate guards alleged that he saw him throw something down when he was ordered to stop.  As a result, he was detained for possession of drugs.  

	d.  He adds he is a good American who cares for his family and works with his community and church.

3.  The applicant provides 12 letters 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 enlisted in the Regular Army on 30 January 1970 for a period of 3 years.  He was awarded military occupational specialty 76P (Stock Control and Accounting Specialist) and he was assigned to Vietnam on 9 December 1970.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments) shows he served in Vietnam as a:

* general clerk while assigned to the 38th Base Post Office from
13 December 1970 through 23 January 1971
* signal supply parts specialist while assigned to the 5th Light Equipment Maintenance Company (General Support) beginning on 24 January 1971

4.  On 26 March 1971, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ):

	a.  Article 86 with:

* 4 specifications of failing to go at the time prescribed to his appointed place of duty (on 26 February and on 12, 15, and 16 March 1971)
* 1 specification of leaving guard watch with the intent to abandon the same, on 4 March 1971

	b.  Article 92 with the specifications of:

* violating a lawful general regulation by being in the Saigon, Tan Son Nhut area without proper authorization on 16 March 1971
* failing to obey a lawful order by wrongfully being in the 549th Light Maintenance Company without authorization on 23 February 1971

	c.  Article 134 with the specifications of:

* possessing a falsified Military Advisory Command Form on 16 March 1971
* wrongfully having in his possession a habit forming drug (heroin) on
16 March 1971

5.  On 23 June 1971, the applicant consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant elected not to submit any statements with his request.

	c.  The applicant and his counsel placed their signatures on the document.

6.  The applicant's company commander and group commander recommended approval of the request for discharge with an undesirable discharge.

7.  On 5 August 1971, the separation authority approved the applicant's request for discharge and directed he receive an Undesirable Discharge Certificate.  

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 14 August 1971 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an Undesirable Discharge Certificate. He completed 1 year, 6 months, and 15 days of active service this period.  His DD Form 214 also shows he served in Vietnam from 9 December 1970 to 
14 August 1971 (8 months and 6 days).

9.  On 1 March 1973, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his undesirable discharge to a general discharge.  On 15 March 1973, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

10.  In support of his application, the applicant provides 12 letters of support from friends, neighbors, co-workers, a minister, and a teacher and two students.  Most of the adults indicate they have known the applicant 10 years or more.  They attest to his honesty, high moral character, positive work ethic, and his dedication to both family and community.

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under:

* Article 86 for failing to go to the appointed place of duty at the time prescribed or going from that place of duty
* Article 92 for failing to obey any lawful general order or regulation, or violation of or failure to obey a lawful general order or regulation
* Article 134 for wrongfully making, altering, counterfeiting, or tampering with a military or official pass, permit, discharge certificate, or identification card, or for crimes and offenses not capital of which the person is subject

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge outweigh his overall record of service.  Considering all the facts of the case, the characterization of service was appropriate and equitable.

2.  Records show the applicant was charged under the UCMJ with:

* Article 86 - for failing to go to his appointed place of duty at the time prescribed and leaving his place of duty (5 specifications)
* Article 92 - for violating a lawful general and failing to obey a lawful order (2 specifications)
* Article 134 - for wrongfully possessing a habit-forming drug and possessing a falsified form

3.  The applicant elected to request discharge in lieu of being court-martialed and he completed only about one-half of his 3-year enlistment obligation.  

4.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

5.  The applicant's contentions regarding his post-service accomplishments and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

6.  In view of the foregoing, there is no basis for granting the requested relief.







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)                                         AR20110016280



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ABCMR Record of Proceedings (cont)                                         AR20110016280



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