IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110016551 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that his military service is unjustly characterized.  He never committed an offense which would have resulted in a dishonorable discharge.  He further states he was never properly informed or counseled on the effects of the discharge after separation.  

3.  The applicant provides:

* two letters from the Army Discharge Review Board (ADRB)
* Standard Form (SF) 180 (Request Pertaining to Military Records)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* SF 88 (Report of Medical Examination)
* DD Form 47 (Record of Induction)
* SF 603 (Health Record – Dental – Continuation)
* SF 601 (Health Record – Immunization Record)
* DA Form 20 (Enlisted Qualification Record)

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 born on 9 February 1949 and he was inducted into the Army of the United States on 27 March 1969, at age 20.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Cook).  He served in the Republic of Vietnam from 31 May 1970 through 5 April 1971.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, he held the rank/grade of private (PVT)/E-1 at the time of his discharge.

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 27 May 1970 for being absent without leave (AWOL) from his unit
* 21 November 1970 for leaving his appointed place of duty

4.  On 1 March 1971, charges were preferred under the UCMJ.  The applicant was charged with two specifications of stealing, one specification of breaking restriction, and two specifications of communicating a threat, in violation of Articles 121 and 134, UCMJ, respectively.  On 6 March 1971, the convening authority referred these charges for trial by a special court-martial empowered to adjudge a bad conduct discharge.

5.  On 25 March 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the  Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.   

7.  On 29 March 1971, the separation authority approved the applicant’s request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 6 April 1971, the applicant was discharged accordingly.  He had completed a total of 1 year and 2 days of creditable active military service with 7 days of lost time.

8.  On 27 September 1982, the applicant was informed his application to the ADRB for an upgrade of his discharge was denied. 

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was appropriate at the time the applicant was discharged.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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 contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this claim.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  
3.  Notwithstanding the applicant’s contentions, the available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The available evidence shows the applicant was AWOL, charged with the commission of offenses punishable under the UCMJ with a punitive discharge, and that he accumulated 7 days of lost time.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general 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)                                         AR20110016551



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ABCMR Record of Proceedings (cont)                                         AR20110016551



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