IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20120019372 


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 to a general discharge or an honorable discharge.

2.  He states he was given a court-martial because he threatened to expose "clandestine and unprofessional conduct" in his unit.  He states he was singled out.  He feels it is in his and the Government's best interest to upgrade his discharge so he may resume his "pursuit of being an honorable, responsible U.S. Citizen."  

3.  He provides:

* page two of a DD Form 458 (Charge Sheet)
* page one of Special Court-Martial Order Number 29, issued by Headquarters (HQ), 7th Squadron, 17th Cavalry, dated 11 July 1970
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 

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.  On 13 December 1968, the applicant was inducted into the Army of the United States.  

3.  On 11 March 1969, HQ, 1st Training Brigade, U.S. Army Training Center, Fort Campbell, KY, issued Special Court-Martial Order Number 82.  The order shows, pursuant to his pleas, the applicant was found guilty of:

* unlawfully striking a fellow Soldier on the nose with his fist on 27 February 1969
* committing an assault upon a fellow Soldier by striking him on the back of the head with a rifle on 27 February 1969

4.  On 18 April 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from a noncommissioned officer.  

5.  A DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) he was:

* confined from 14 to 16 April 1969
* absent without leave (AWOL) from 19 July to 15 September 1969
* dropped from the rolls (DFR) from 16 to 30 September 1969

6.  On 19 November 1969, HQ, Troop Command, U.S. Army Garrison, Fort Carson, CO, issued Special Court-Martial Order Number 2089.  The order shows, pursuant to his plea, he was found guilty of being AWOL from 20 July to 10 September 1969.  

7.  His record shows he was assigned to duty in the Republic of Vietnam (RVN) from 29 January 1970 to 11 February 1971.  

8.  On 11 July 1970, HQ, 7th Squadron, 17th Cavalry, issued Special Court-Martial Orders Number 29.  

	a.  The order shows the following charges and specifications:

		
   (1)  Charge I – 

* Specification 1 – failing to go at the time prescribed to his appointed place of duty (guard mount) on 7 May 1970 
* Specification 2 – failing to go at the time prescribed to his appointed place of duty (guard mount) on 10 May 1970 
* Specification 3 – without authority, going from his guard with intent to abandon the same on 22 May 1970 

(2)  Charge II – 

* Specification 1 – wrongfully communicating a threat to kill S__ N_____ T__ on 12 May 1970 
* Specification 2 – wrongfully communicating a threat to injure four fellow Soldiers on 22 May 1970 

		(3)  Charge III – behaving with disrespect toward two superior commissioned officers on 22 May 1970.

		(4)  Charge IV – being disrespectful in language toward a superior NCO on 22 May 1970.

	b.  He pleaded not guilty to all specifications and charges and was found guilty of:

* Charge I, Specifications 1 and 2
* Charge II, Specification 2
* Charge IV

	c.  He was sentenced to be confined at hard labor for 6 months.  The sentence was approved and ordered to be executed.

9.  A DD Form 458, dated 18 December 1970, shows he was charged with:

* Charge I – being AWOL from 16 to 17 December 1970

* Charge II – 

* Specification 1 – violating a lawful general regulation by being in Pleiku City, RVN, on 17 December 1970
* Specification 2 – violating a lawful general regulation by purchasing a two-wheeled vehicle without prior approval on 17 December 1970
* Specification 3 – violating a lawful general regulation by operating a privately-owned vehicle without a valid Vietnamese driver's license on 17 December 1970

* Charge III – unlawfully killing T__ V__ B__ by driving a motorcycle against the individual in a negligent manner on 17 December 1970

10.  On 7 January 1971, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial which could lead to a bad conduct or dishonorable discharge, of the effects of requesting discharge for the good of the service in lieu of trial by court-martial, and of the rights available to him.

11.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He acknowledged:

	a.  he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate;

	b.  as a result of the issuance of such a discharge, he would 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 Federal and State law; and
 
	c.  he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

12.  On 15 January 1971, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed he receive an Undesirable Discharge Certificate.  On 12 February 1971, he was discharged as directed.  The DD Form 214 issued at that time shows his service was characterized as under conditions other than honorable.  

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

   a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The request was to include the member's admission of guilt.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  When warranted, commanders were to provide a statement indicating the member was mentally defective, deranged, or abnormal.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.  

	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 states 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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  The available records contain no evidence to support his claim that he was singled out because he threatened to expose "clandestine and unprofessional conduct" in his unit.  

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, violating lawful regulations, and negligent homicide, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.  

4.  He was convicted by three special courts-martial for specifications including assault, AWOL, failing to go at the time prescribed to his appointed place of duty while serving in a combat zone, and wrongfully communicating a threat.  Later, when faced with new charges, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20120019372





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ABCMR Record of Proceedings (cont)                                         AR20120019372



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