IN THE CASE OF: BOARD DATE: 6 August 2009 DOCKET NUMBER: AR20090005197 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. 2. The applicant states that his discharge needs to be upgraded so that he and his family are taken care of in terms of a pension and medical benefits. He adds that his combat exposure and chemical exposure sickness happened before his discharge but he has still not been treated. He also adds that he was sentenced to a 5-year suspended sentence for a civilian juvenile conviction that had nothing to do with the Army. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 16 August 1973; a copy of the U.S. District Court, Western District of Texas, letter, dated 9 March 1973; a copy of the recommendation for discharge memorandum, dated 15 May 1973; and an internet printout regarding Department of Veterans Affairs benefits. 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 enlisted in the Regular Army for a period of 3 years on 20 March 1970. He completed basic combat and advanced individual training and was awarded military occupational specialty 76V (Equipment Storage Specialist). The highest rank/grade he attained during his military service was private first class/E-3. 3. The applicant’s record further shows he served in the Republic of Vietnam from on or about 16 January 1971 to on or about 25 February 1972. His awards and decorations include the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal, the Expert Marksmanship Qualification Badge with Hand Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 4. The applicant's records reveal an extensive history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows: a. on or about 14 January 1971, for being absent without leave (AWOL) during the period on or about 18 December 1970 through on or about 14 January 1971. His punishment consisted of a reduction to private/E-2, a forfeiture of $50.00 pay for 2 months, and 30 days of restriction; b. on 18 March 1971, for failing to report to guard duty on or about 12 March 1971. His punishment consisted of a forfeiture of $20.00 pay; c. on 10 April 1971, for failing to report to guard duty and/or guard mount on three separate occasions on or about 3 and 4 April 1971. His punishment consisted of a forfeiture of $20.00 pay and 14 days of restriction; d. on 2 May 1971, for willfully disobeying a lawful order from a superior noncommissioned officer on or about 27 April 1971 and wrongfully appropriating a government truck on or about 27 April 1971. His punishment consisted of a reduction to private (PVT)/E-1; e. on 17 May 1971, for leaving his post in an area designated as authorizing hostile fire pay without being properly relieved on or about 2 May 1971 and going from his watch with intent to abandon the same on or about 4 May 1971. His punishment consisted of a forfeiture of $25.00 pay; and f. on 2 July 1971, for leaving his guard post with intent to abandon the same on or about 16 June 1971. His punishment consisted of a forfeiture of $30.00 pay and 14 days of restriction. He appealed his punishment on 2 July 1971; however, the next superior authority denied his appeal on 10 July 1971. 5. On 7 July 1971, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his constant disciplinary problems, frequent counseling and close supervision even for simple assignments, negative attitude, disruption of the unit's mission, substandard military appearance and bearing, and unsatisfactory conduct and efficiency. The applicant was provided with a copy of this bar but elected not to submit a statement on his own behalf. The Bar to Reenlistment Certificate was ultimately approved by the approval authority. 6. On 24 August 1971, the applicant pleaded not guilty at a special court-martial to one specification of assaulting another Soldier by striking him in the mouth and under the left eye with his fist. The Court found him guilty and sentenced him to a reduction to private/E-1, a forfeiture of $95.00 pay for 6 months, and confinement at hard labor for 4 months. The sentence was adjudged on 24 August 1971 and approved on 27 August 1971. 7. The applicant's records reveal his acceptance of additional NJP under the provisions of Article 15 of the UCMJ as follows: a. on or about 2 August 1972, for being AWOL during the period on or about 5 July 1972 through on or about 27 July 1972. His punishment consisted of a reduction to private/E-1, a forfeiture of $100.00 pay for 2 months, and 30 days of extra duty; and b. on 21 September 1972, for being AWOL during the period on or about 14 September 1972 through on or about 20 September 1972. His punishment consisted of a forfeiture of $100.00 pay for 2 months (1 month suspended for 60 days) and 21 days of extra duty. 8. On 30 October 1972, the applicant was arrested by civil authorities for the civilian charges of altering a treasury check and passing an altered treasury check. He subsequently appeared before the U.S. District Court, Western District of Texas, where he pleaded guilty and was convicted of the charge of altering a treasury check. He was sentenced to a suspended sentence of 5 years of probation. 9. The applicant's records reveal his acceptance of additional NJP under the provisions of Article 15 of the UCMJ as follows: a. on 5 December 1972, for being AWOL during the period on or about 27 November 1972 through on or about 29 November 1972. His punishment consisted of a forfeiture of $50.00 pay for 2 months and 20 days of extra duty; b. on 13 December 1972, for willfully disobeying a lawful order from his battalion commander on three separate occasions on or about 8, 9, and 10 December 1972. His punishment consisted of a forfeiture of $50.00 pay; c. on 18 December 1972, for willfully disobeying a lawful order from his battalion commander on or about 17 December 1972. His punishment consisted of a forfeiture of $50.00 pay; d. on 17 January 1972, for being AWOL during the period on or about 3 January 1973 through on or about 15 January 1973. His punishment consisted of a forfeiture of $144.00 pay, 45 days of extra duty, and 60 days of restriction; and e. on 13 February 1973, for willfully disobeying a lawful order from his battalion commander on or about 12 February 1973. His punishment consisted of a forfeiture of $50.00 pay. 10. On 11 May 1973, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-206 by reason of conviction by civil court. 11. On 11 May 1973, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment. The applicant understood that he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws. The applicant further submitted a statement on his own behalf wherein he requested consideration for a general discharge. 12. On 15 May 1973, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-206 for misconduct, conviction by civil court. He recommended an Undesirable Discharge Certificate. 13. On 16 May 1973, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate. He cited the applicant's conviction as well as his pattern of misconduct. 14. On 22 May 1973, the applicant’s senior commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate. 15. On 26 July 1973, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 and directed the applicant be furnished an Undesirable Discharge Certificate. On 16 August 1973, the applicant was accordingly discharged. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate. This form further confirms that he completed a total of 2 years, 10 months, and 11 days of creditable active military service and had 198 days of lost time. 16. On 9 July 1982, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 17. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied: (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement n excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. An undesirable discharge was normally considered appropriate. 18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation. 19. 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. 20. 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. 21. Army Regulation 635-200, in pertinent part, states the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. Characterization may be based on conduct in the civilian community. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge should be upgraded. 2. The applicant's service in the Republic of Vietnam is noted. However, there is no evidence that his combat service caused his extensive history of misconduct as his indiscipline started before his arrival in Vietnam and continued during and after his Vietnam service. It spanned his entire military service. 3. The evidence of record shows that the applicant was convicted by a civil court for the civilian charges of altering a treasury check and passing an altered treasury check. The fact that his sentence was suspended is not relevant in this case as he was convicted of the charge by civil authorities. Additionally, his offense is also punishable under the UCMJ and carries a penalty of confinement. 4. The evidence of record further shows that the applicant's immediate commander initiated separation action against him and that he was accordingly notified. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 5. The governing regulation states that the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to a general discharge 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) AR20090005197 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090005197 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1