IN THE CASE OF:	.

		BOARD DATE:	 11 February 2014

		DOCKET NUMBER:  AR20130010119


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 (UD).

2.  The applicant states:

	a.  following his tour in Vietnam from 1971 - 1972, his service was successful and characterized as honorable; and

   b.  since his Vietnam service, he raised a family, went to trade school, worked as an ironworker with Local 623 for 25 years, stayed out of trouble, and stayed in the church.

3.  The applicant provides:

* Self-authored statement
* National Personnel Records Center (NPRC) letter
* DD Form 214 (Report of Separation from Active Duty)
* Certificate of Appreciation
* Air Medal (AM) Orders and Certificate
* Bronze Star Medal (BSM) Certificate


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 record shows he initially enlisted in Regular Army (RA) on 27 August 1971 and continued to serve until he was honorably released from active duty on 29 May 1974.  The DD Form 214 issued him at that time shows he completed 2 years, 9 months and 3 days of creditable active duty service.

3.  His DD Form 214 shows he completed 9 months and 19 days foreign service in Vietnam.  He earned the following awards:

* Bronze Star Medal
* Air Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device 1960

4.  On 16 June 1974, the applicant again enlisted in the RA in the rank of specialist four.  He held and served in military occupational specialty 71B (Clerk).

5.  His record shows he thrice accepted non-judicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order on six separate occasions.  His DA Form 20 (Enlisted Qualification Record) also shows he was arrested in Christian County, Kentucky for the charge of first degree burglary on 18 January 1975 and was pending civil conviction.

6.  On 13 March 1975, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 134 of the UCMJ for wrongfully transferring one ounce (more or less) of marijuana to a confidential informant on 21 February 1975.
7.  On 19 March 1975, having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

8.  In his request for discharge he acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of his undesirable discharge.  He further elected to submit a statement in his own behalf wherein he indicated:

   a.  he realized his unjustified wrongdoing;
   
   b.  he could no longer give the Army good service;
   
   c.  his wife was on the verge of a second nervous breakdown; and
   
   d.  his past exemplary military service, including 13 months in Vietnam, is indicative of his ability to Soldier; however, under the circumstances it would be in the best interest of his wife, the Army, and himself to be discharged.

9.  On 9 April 1975, having considered the applicant's statement, the separation authority approved the discharge recommendation and directed that he receive a UD under the provisions of Army Regulation 635-200, chapter 10.  

10.  On 17 April 1975, the applicant was discharged accordingly.  The 
DD Form 214 he was issued confirms that he had completed 3 years, 6 months, and 2 days of total active service.

11.  There is no indication that the applicant applied to 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.  

   a.  Chapter 10 of that regulation provides, in pertinent part, 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, at the time an undesirable discharge was normally considered appropriate.

   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 provides that a GD 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 seeks an upgrade of his UD indicating his first period of honorable active duty service included his tour in the RVN and he references his post service success and good conduct.  However, the honorable discharge the applicant received during his initial enlistment is solely reflective of that service.  In addition, while his post-service conduct is noteworthy, neither of these factors are sufficient to support his claim.

2.  The evidence of record confirms that while pending civil conviction for first degree burglary, the applicant was charged with transferring an ounce (more or less) of marijuana to a confidential informant, which offense is punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His request for discharge under the provisions of chapter 10, Army Regulation 
635-200, includes his admission of guilt.

3.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. As a result, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20090015521



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS



1

ABCMR Record of Proceedings (cont)                                         AR20130010119



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1