IN THE CASE OF: BOARD DATE: 07 OCTOBER 2008 DOCKET NUMBER: AR20080008486 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, in effect, that his discharge be upgraded to an honorable discharge. 2. The applicant essentially states that the reason for his discharge was as a result of a civil matter, and now that this matter has been resolved, he feels that he served his country and is a Vietnam veteran, he should receive full benefits. However, he states that he cannot take advantage of these benefits unless he is granted an update to his discharge. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty) that was issued at the time of his discharge on 25 November 1975 in support of this application. 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 military records show that he enlisted in the Regular Army on 14 November 1967. He completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 71B (Clerk Typist). He was later awarded MOS 95B (Military Policeman). He served in Vietnam from May 1968 to May 1969, and then he was reassigned to Fort Sill, Oklahoma. 3. On 4 September 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from his superior noncommissioned officer. His punishment consisted of reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, which was suspended for 30 days and ultimately remitted without action, and forfeiture of $20.00. 4. The applicant departed for a tour in Germany on 25 April 1970. 5. On 6 June 1971, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his place of duty on 3 June 1971, and remaining so absent until 4 June 1971. His punishment consisted of reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, which was suspended for 60 days but vacated on 14 July 1971, a forfeiture of $50.00, and 14 days of extra duty. 6. The applicant returned from his tour in Germany on 20 April 1972, and was subsequently reassigned to Fort Bragg, North Carolina. 7. On 21 June 1974, the applicant accepted NJP under Article 15 of the UCMJ for essentially issuing a worthless check in the amount of $24.00. Having been promoted back to specialist/E-4, his punishment consisted of a reduction in rank and pay grade from specialist/E-4 to private first class/E-3. 8. On 22 June 1074, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his place of duty on 19 June 1974. His punishment consisted of 7 days of correctional custody and a forfeiture of $89.00, the latter of which was suspended for 90 days. 9. On 25 June 1974, the applicant accepted NJP under Article 15 of the UCMJ for failing to obey a lawful order issued by his superior noncommissioned officer to bring into his unit the required equipment that he needed for the correctional custody facility. His punishment consisted of 7 days of correctional custody and a forfeiture of $96.00, both of which were suspended for 90 days. 10. On 2 March 1975, the applicant was arrested by civil authorities and charged with first degree rape, assault with a deadly weapon with intent to kill inflicting serious injury, and a crime against nature. The applicant pled guilty to second degree rape, assault with a deadly weapon inflicting serious injury, and a crime against nature. He was sentenced life in prison for rape, 10 years for assault with a deadly weapon inflicting serious injury, and 10 years for a crime against nature, with the three sentences to run concurrently. 11. In a letter, dated 24 April 1975, the applicant's commanding officer advised him that he intended to recommend him for discharge under the provisions of Army Regulation 635-206 by reason of conviction and sentence by a civil court, and that he may receive an undesirable discharge as a result of this action. He also advised the applicant of his rights, which included requesting appointment of military counsel to represent him and, in his absence, present his case before a board of officers, submitting statements in his own behalf, and waiving the foregoing rights. 12. On 13 June 1975, the applicant acknowledged that he received the letter from his military attorney counseling him about the administrative discharge proceedings pending against him. The applicant waived a hearing of his case before a board of officers, and waived representation by an attorney. He also elected not to submit statements in his own behalf. He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further understood that, as a result of issuance of an undesirable discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life. 13. On 10 November 1975, the proper separation authority approved the applicant's separation under the provisions of Army Regulation 635-206, and directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate). He also directed that the applicant be reduced to the lowest enlisted grade. On 25 November 1975, the applicant was discharged; however, his DD Form shows that he was incorrectly issued a DD Form 257A (General Discharge Certificate Under Honorable Conditions). 14. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 15. Information from the North Carolina Department of Corrections Public Access Information System essentially shows that the applicant was released on parole on 9 September 2003, and that his parole was terminated on 7 September 2008. 16. The applicant essentially stated that the reason for his discharge was a result of a civil matter, and now that this matter has been resolved, he feels that as he served his country and is a Vietnam veteran, he should receive full benefits. However, he stated that he cannot take the proper advantage of these benefits unless he is granted an update to his discharge. 17. Army Regulation 635-206, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of misconduct (i.e., fraudulent entry, conviction by civil authorities, absence without leave and desertion). An undesirable discharge was normally considered appropriate. 18. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 19. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge should be upgraded to an honorable discharge. 2. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 3. The applicant accepted NJP under Article 15 of the UCMJ on five occasions for multiple offenses, and was apprehended by civil authorities and charged with first degree rape, assault with a deadly weapon with intent to kill inflicting serious injury, and a crime against nature. He was convicted of second degree rape, assault with a deadly weapon inflicting serious injury, and a crime against nature and sentenced to life in prison plus two 10-year terms to run concurrently with his life sentence. There is no evidence of arbitrary or capricious actions by the applicant's command. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He had an opportunity to present his case before a board of officers and to submit statements in his own behalf, and to be represented by counsel; however, he waived those rights. 4. The applicant's character of service was properly determined to be undesirable by both his chain of command and the separation authority. However, the applicant's DD Form 214 shows that he was incorrectly issued a General Discharge Certificate Under Honorable Conditions at the time of his discharge on 25 November 1975. While it is the policy of the Army Board for Correction of Military Records not to correct a record to reflect a change that will make an individual concerned worse off than before applying to the Board, based upon the heinousness of the offenses he was convicted of during his military service, he is clearly not entitled to an honorable discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __XXX __ __XXX__ __XXX__ 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. ___ XXX ___ 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) AR20080008486 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080008486 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1