IN THE CASE OF: BOARD DATE: 14 July 2009 DOCKET NUMBER: AR20090004250 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 that his discharge be upgraded. 2. The applicant states that he had an impeccable record during his first enlistment and that he lost two pay grades which he feels is more than enough. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 22 February 1974. 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 enlisted in the Regular Army on 17 October 1967 for a 3-year period of service. He completed basic and advanced individual training and was awarded military occupational specialty 94B (Cook). Records show he received an honorable discharge on 21 November 1969 and then immediately reenlisted for an additional 3-year period. Records further show that he was granted a waiver when he reenlisted for he had 6 days of being absent without leave (AWOL) during his first enlistment period. He completed 2 years and 28 days of net active service during his first enlistment period. At the time of his reenlistment, the applicant's rank was specialist five (temporary)/pay grade E-5. 3. The applicant's military personnel record shows that he served in the Republic of Vietnam from 22 November 1969 to 19 July 1970 with his principal duty as a cook. 4. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 September 1969 during his first enlistment period for disobeying the lawful orders of a superior noncommissioned officer. He also accepted NJP under the provisions of Article 15 of the UCMJ on three separate occasions from 12 March 1970 to 18 May 1970 for dereliction in the performance of his duties, failure to obey military regulations and directives (failure to carry his military driving license while operating a military vehicle and having more than one ration card in his possession), drunken driving, assault against a subordinate Soldier, being disrespectful in nature toward superior noncommissioned officers and officers, and disorderly conduct. 5. Headquarters, U.S. Army Depot, Long Binh, Special Court-Martial Order Number 36, dated 4 July 1970, shows that the applicant was found guilty on 13 June 1970 of violating Articles 89 and 91 of the UCMJ for being disrespectful toward a superior commissioned officer and noncommissioned officer on two separate dates. The sentence was adjudged on 17 June 1970 and consisted of reduction in grade to private first class/pay grade E-3, restriction to the company area for 30 days, and forfeiture of $100.00 pay per month for 3 months. 6. The applicant's separation processing packet and the specific facts and circumstances pertaining to his discharge are not available for review. However, his record contains a duly constituted DD Form 214 which shows that on 22 February 1974 the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, by reason of administrative discharge – conduct triable by court-martial. He had completed 2 years, 10 months, and 20 days of net active service and his service was characterized as under other than honorable conditions. His DD Form 214 shows that he held the rank of private/pay grade E-1 at the time of his discharge. 7. The applicant's DD Form 214 with a separation date of 22 February 1974 further shows that the applicant had 824 days of lost time due to AWOL from 21 August 1970 to 21 November 1972 and then 436 days of AWOL from 22 November 1972 to 31 January 1974. 8. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 9. Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 10. Army Regulation 635-200 further provides that the applicant must have indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He must have acknowledged he understood that if his discharge request was approved, 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 11. 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. 12. 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. 13. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge should be upgraded and that he had an impeccable record during his first enlistment period. He further contends that he lost two pay grades and that should be enough punishment. 2. The evidence of record does not support the applicant's contention that he had an impeccable record during his first enlistment period. He accepted NJP under the provisions of UCMJ for disobeying the lawful orders of a superior noncommissioned officer and required a waiver when he reenlisted because he had 6 days of AWOL on his record. Clearly, the applicant did not have an impeccable record. 3. Evidence shows the applicant was reduced two pay grades by a summary court-martial that found him guilty of offenses unrelated to the charges that resulted in the applicant requesting discharge. 4. Although the applicant's complete separation packet was not available for the Board's review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge. The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions. Further, the regulation authorized the commander imposing the discharge to reduce a Soldier to the lowest enlisted pay grade of private/pay grade E-1 prior to the Soldier's separation. 5. Therefore, the applicant's contention that his first reduction from specialist five/pay grade E-5 to private first class/pay grade E-3 was enough punishment is without merit. The applicant was reduced to the lowest enlisted grade by the discharge authority who ordered his separation from the Regular Army in lieu of trial by court-martial. The evidence of record shows he had accumulated 1,260 days of lost time due to AWOL. Clearly the applicant's conduct did not warrant an honorable discharge. 6. In the absence of evidence to the contrary, regularity in the discharge process is presumed. The type of discharge and the reason for separation are appropriate considering the known facts of the case. Therefore, there is no basis for warranting an upgrade of the applicant's under other than honorable conditions discharge to either a general under honorable conditions or an honorable discharge. 7. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. 8. In view of the foregoing, there is insufficient evidence to upgrade the applicant's under other than honorable discharge characterization of service. 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) AR20090004250 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004250 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1