IN THE CASE OF:	  

		BOARD DATE:  15 May 2012

		DOCKET NUMBER:  AR20110022098 


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 under other than honorable conditions discharge.

2.  The applicant states:

* He served in Vietnam
* He did not know what he was charged with
* He had no knowledge of a chapter 10 and he had no counsel
* He did not do anything wrong

3.  The applicant provides a self-authored letter and his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 1 May 1971 and 27 May 1970.

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 records show he enlisted in the Regular Army (RA) on 16 September 1969 and he held military occupational specialty 36K (Field Wireman).  He served in Germany from 21 February 1970 to 20 July 1970.

3.  While in Germany, he was honorably discharged on 27 May 1970 for the purpose of immediate reenlistment in the RA.   

4.  He executed a 3-year reenlistment in the RA on 28 May 1970.  He subsequently served in Vietnam with the 5th Battalion, 46th Artillery Regiment, 5th Infantry Division, from 26 August 1970 to on or about 30 April 1971. 

5.  On 9 March 1971, court-martial charges were preferred against him for:

* one specification of being disrespectful toward a superior commissioned officer
* one specification of willfully disobeying a lawful order to remove a magazine from his weapon
* one specification of willfully disobeying a lawful order to fall back into ranks
* one specification of willfully disobeying a lawful order to return to guard mount 
* one specification of disobeying a lawful order to remain in his barracks

6.  On 23 April 1971, subsequent to referral of court-martial charges, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations), for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, he stated/acknowledged that:

* prior to completing this request, he was afforded the opportunity to consult with counsel and he did so on 23 April 1971
* he was making the request of his own free will and he had not been subjected to any coercion
* he acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate
* he acknowledged that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he had retained a copy of his chapter 10 request for discharge

8.  On 27 April 1971, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 1 May 1971.

9.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed a total of 8 months and 12 days of creditable active military service during this period of service.

10.  On 11 June 1979, the Army Discharge Review Board denied is petition for an upgrade of his discharge.

11.  He submitted a self-authored statement in which he chronicled his military service, including his training, service in Germany and the friends he made, service in Vietnam, discharge, and subsequent dealing with the Department of veterans Affairs.

12.  Army Regulation 635-200 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.  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, an undesirable discharge was considered appropriate at the time.

13.  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.
14.  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.  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’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 chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

2.  Contrary to his arguments, the evidence of record shows he consulted with counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Only after he did so, he submitted a voluntary request for discharge in lieu of trial by a court-martial.  Additionally, he acknowledged that he retained a copy of his chapter 10 request for discharge.

3.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he 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)                                         AR20110022098





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ABCMR Record of Proceedings (cont)                                         AR20110022098



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