IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120005206 


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 discharge under conditions other than honorable to general under honorable conditions.

2.  The applicant states he did not refuse to be inducted into the Army.  He could not adjust to being in Vietnam.  He was emotionally stressed out which caused him to act violently and resulted in his divorce.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 47 (Record of Induction), and U.S. Army Recruiting Command Form 180 (Acknowledgment of Service Obligation).

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 inducted into the Army of the United States on 25 June 1969 and successfully completed training.  He was awarded military occupational specialty 57E (Laundry and Bath Specialist).  The highest rank he attained while serving on active duty was specialist four/E-4.  He arrived in Vietnam on              4 December 1969

3.  On 24 March 1970, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to acknowledge a lawful order.

4.  On 12 May 1970, the applicant received a medical evaluation wherein the doctor stated he had an extreme anti-authoritarian attitude and anti-social trends. 
He failed to adjust to the military.  Additionally, the applicant was diagnosed with a passive-aggressive personality.

5.  On 18 May 1970, charges were preferred against the applicant for:

* possessing a loaded firearm while in a building used for housing troops on or about 8 May 1970
* being disrespectful toward the battalion commander on or about 8 May 1970
* possessing a loaded firearm while in a building used for housing troops on or about 9 May 1970
* disobeying an order to go to work on 9 May 1970

6.  On 19 May 1970 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged in his request that he understood that as a result of being discharged under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement in his own behalf.

7.  On 27 May 1970, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.  His DD Form 214 shows he completed a total of 11 months and 7 days of active service.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
9.  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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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 because he did not refuse induction was carefully considered and determined to be without merit.

2.  Records clearly show the applicant voluntarily requested discharge in lieu of trial by court-martial.  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.

3.  Based on his record of indiscipline, which included multiple instances of disrespect and possession of a loaded firearm, the applicant's service clearly 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 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 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)                                         AR20120004905



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ABCMR Record of Proceedings (cont)                                         AR20120005206



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