BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20130000084 


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 was given an undesirable discharge after serving a year in Vietnam and he wishes to have it changed to an honorable discharge.  He was involved in some racial disturbances during his service in Vietnam.  Only the African-American Soldiers were chaptered out.  The incident he was involved in was racially motivated. 

3.  The applicant did not provide any evidence. 

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 was inducted into the Army of the United States on 25 March 1970 and he was honorably discharged on 30 March 1970 for the purpose of immediate enlistment in the Regular Army (RA). 

3.  He enlisted in the RA on 31 March 1970 and he held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 3 November 1970 to 8 November 1971. 

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 29 March 1971, failing to go at the time prescribed to his appointed place of duty
* 6 May 1971, dereliction in the performance of his duties

5.  On 9 July 1971, general court-martial charges were preferred against him for three specifications of assaulting three Soldiers by striking them with a means likely to produce grievous bodily harm.  

6.  On 11 August 1971, the applicant consulted with legal counsel who advised him 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.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).   In his request for discharge, the applicant acknowledged:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he understood that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf


7.  On 21 September 1971, his immediate commander recommended approval of his request with the issuance of an Undesirable Discharge Certificate.  The immediate commander stated in regard to the applicant:

* his conduct and efficiency ratings had been unsatisfactory
* he had no desire to conform to Army regulations or stay in the military
* the seriousness of charges, coupled with his negative attitude, warrant approval of his discharge action

8.  On 14 October 1971, his senior commander also recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate.

9.  Consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 19 November 1971.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 1 year, 7 months, and 19 days of creditable active service.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

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 normally considered appropriate at the time.

	a.  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.
	b.  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 records show he was charged with the commission of offenses 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.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant, who had a record of prior misconduct, could have elected trial by a court-martial if he thought he was innocent of the charges. 

3.  Based on his record of indiscipline, the applicant's service clearly did 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)                                         AR20130000084





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ABCMR Record of Proceedings (cont)                                         AR20130000084



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