IN THE CASE OF: BOARD DATE: 13 AUGUST 2009 DOCKET NUMBER: AR20090007049 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 general discharge, under honorable conditions, be upgraded to a fully honorable discharge. 2. The applicant states, in effect, that although his records show he went absent without leave (AWOL) he was a good Soldier. He had combat service and was wounded in action. He walked point for his troops every other day for about 8 months without a casualty. He also received awards and decorations as outlined on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 3. The applicant adds that he has been a model citizen and is an asset to his community. He is a proud American who fought for his country. He was not aware that an upgrade was even possible until now; therefore, he is appealing to the Board to consider upgrading his discharge to honorable. 4. In support of his request, the applicant provides those documents that are listed in Item 9 (In Support of the Application, I Submit as Evidence the Following Attached Documents) of the DD Form 149 (Application for Correction of Military Record) that he submitted. 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 service record shows he was inducted into the Army of the United States on 7 March 1968 at the age of 19 years, 9 months, and 12 days. He successfully completed basic combat training at Fort Gordon, Georgia, and advanced individual training at Fort Jackson, South Carolina. Upon completion of his training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to the rank of specialist four, pay grade E-4, on 11 June 1968. This was the highest rank and pay grade the applicant achieved during his active duty service. 4. On 10 July 1968, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without proper authority on 6 July 1968 and remaining so absent until 9 July 1968. The imposed punishment was a forfeiture of $47.00 per month for 2 months, restriction to the company area for 14 days, and to perform extra duties for 14 days. The applicant did not appeal the punishment. 5. On 21 August 1968, the applicant was assigned to Vietnam and served with Company C, 1st Battalion, 27th Infantry Regiment of the 25th Infantry Division. 6. On 22 August 1968, the applicant received an Article 15 under the provisions of the UCMJ for absenting himself without proper authority on 9 August 1968 and remaining so absent until 21 August 1968. The imposed punishment was a forfeiture of $26.00. The applicant did not appeal the punishment. 7. The applicant was awarded the Combat Infantryman Badge in Special Orders Number 268, paragraph 29, published by Headquarters, 25th Infantry Division, on 24 September 1968. 8. The applicant was awarded the Purple Heart in General Orders Number 9025, published by Headquarters, 25th Infantry Division, on 22 December 1968, for wounds he sustained as a result of enemy action on 22 November 1968. 9. The applicant was awarded the Army Commendation Medal, with "V" Device, for heroism in connection with military operations against a hostile force on 22 November 1968, by General Orders Number 2734, published by Headquarters, 25th Infantry Division, on 22 December 1968. 10. The applicant was awarded the Army Commendation Medal, with "V" Device, for heroism in connection with military operations against a hostile force on 23 February 1969, by General Orders Number 3583, published by Headquarters, 25th Infantry Division, on 21 March 1969. (It should correctly have been identified as the Army Commendation Medal with "V" Device and first Oak Leaf Cluster.) 11. On 26 June 1969, the applicant received a special court-martial. He was found guilty of absenting himself without proper authority on 28 March 1969 and remaining absent until 26 May 1969; for wrongfully, willfully, and unlawfully impersonating a noncommissioned officer of the Army by publically wearing a uniform and insignia of rank of a Sergeant, E-5, on 20 May 1969; and for violating a lawful general regulation, to wit, the Military Assistance Command, Vietnam (MACV) Directive 37-6, by entering into excessive currency transactions. The applicant was sentenced to be confined at hard labor for 6 months, to be reduced to pay grade E-1, and to a forfeiture of $73.00 per month for 2 months. The sentence was approved and was ordered duly executed on 26 June 1969 but that portion of the sentence adjudging confinement at hard labor for 6 months was suspended for 6 months, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. The result of the court martial and the sentence were reviewed by the Judge Advocate, Headquarters, 25th Infantry Division, and were found to be legally sufficient on 9 August 1969. 12. The applicant was awarded the Army Commendation Medal, with "V" Device and with Second Oak Leaf Cluster, for heroism in connection with military operations against a hostile force on 3 September 1969, by General Orders Number 11991, published by Headquarters, 25th Infantry Division, on 26 September 1969. 13. On completion of his overseas tour of duty in Vietnam, the applicant was assigned to the 594th Transportation Company at Fort Knox, Kentucky. He arrived in this unit on 18 November 1969. 14. On 3 April 1970, the applicant received an Article 15 under the provisions of the UCMJ for failing to go at the time prescribed to his place of duty on 6 and 12 April 1970. The imposed punishment was a forfeiture of $29.00, restriction to the company area for 7 days, and extra duty for 7 days. The applicant did not appeal the punishment. 15. On 8 May 1970, the applicant received a summary court-martial. He was found guilty of wrongfully having in his possession 0.11 ounces of marijuana on 7 March 1970. The applicant was sentenced to be reduced to the rank of private, E-1, to a forfeiture of $88.00 for 1 month, and confinement at hard labor for 30 days. The sentence was approved and was ordered duly executed on 8 May 1970 but that portion of the sentence adjudging confinement at hard labor for 30 days was suspended until 14 May 1970, at which time, unless the suspension was sooner vacated, the sentence to confinement would be remitted without further action. 16. On 14 May 1970, the applicant was released from active duty at the expiration of his term of service. The applicant's service was characterized as general, under honorable conditions. On the date of his release from active duty, the applicant had completed 2 years net active duty service and had 69 days lost time. 17. Item 38 (Record of Assignment) of the applicant's DA Form 20 shows he received evaluations of "Excellent" for his conduct and efficiency while he underwent basic combat training. All other conduct and efficiency evaluations ranged from "Unsatisfactory" to "Fair" to "Good." 18. There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 19. The evidence shows the applicant was discharged from the U. S. Army Reserve in compliance with AGUZ-RAD Letter Orders Number 02-1079236 published by the Office of the Adjutant General, US Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, dated 27 February 1974. The applicant was issued a general discharge certificate on 1 March 1974 by direction of the Secretary of the Army, in accordance with paragraph 3-1, Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations). 20. Army Regulation 635-200 (Enlisted Separations), in effect at the time of the applicant's release from active duty, provided that a member's record of current enlistment or service would be carefully screened for data that would have a bearing on the final decision as to the characterization of service and type of discharge to be awarded. A checklist would be prepared to assist in the overall evaluation to include the following data: the length of time served in the enlistment or period of service; promotions and demotions the member received; whether there was a record of time lost, and if so, if it was due to AWOL and/or confinement; whether there was any disciplinary action under Article 15 of the UCMJ, and if so, for what specific offenses; whether there had been conviction by court-martial, and if so, the offenses, findings and sentence; the member's conduct and efficiency evaluations; and a record of any citations and awards received. Issuance of an honorable discharge would be conditioned upon proper military behavior and proficient performance of duty during the member's service with due consideration to the member's age, length, grade, and general aptitude. A general discharge is a separation from the Army under honorable conditions if an individual’s military record were not sufficiently meritorious to warrant an honorable discharge. If there was evidence that the individual's military behavior had been proper over a reasonable period of time subsequent to the conviction(s), he may have been considered for an honorable discharge. 21. Army Regulation 635-200, paragraph 3-7a of the version currently in effect, 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. DISCUSSION AND CONCLUSIONS: 1. 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 the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 2. The evidence of record shows the applicant received nonjudicial punishment on three occasions for violating the UCMJ for absenting himself without proper authority and for failing to go at the time prescribed to his place of duty. 3. The applicant was subjected to a special court-martial for wrongfully, willfully, and unlawfully impersonating a noncommissioned officer of the Army by publically wearing a uniform and insignia of rank of a sergeant, E-5; and for violating a lawful general regulation by entering into excessive currency transactions. 4. The applicant was also subjected to a summary court-martial for wrongfully having 0.11 ounces of marijuana in his possession. 5. Over a relatively short period the applicant amassed 69 days of lost time and it appears he had no regard for the UCMJ. The applicant entered the Army in the rank and pay grade of private, E-1 and he rose to the rank and pay grade of specialist four/E-4. He was released from active duty in the same rank and pay grade as that in which he entered. 6. The applicant was given an evaluation of "Excellent" only once while he served on active duty. This evaluation was rendered while he was a trainee in his basic combat training. The remainder of his evaluations show his conduct and efficiency ranged from "Unsatisfactory" to "Good" to "Fair." 7. To the applicant's credit, while he served in Vietnam the record shows he earned a Combat Infantryman Badge, the Purple Heart, and on three separate occasions he was cited for valor and was awarded the Army Commendation Medal with "V" Device and two oak leaf clusters. 8. However, the applicant's record of service clearly shows he did not meet the standards of acceptable conduct and performance of duty which would merit award of an honorable discharge. Review of the applicant's record shows his violations of the UCMJ were not confined to the period of his service after he returned from Vietnam but extended throughout his period of service. The record shows the applicant's misconduct and lost time diminished the character of his service to a level which clearly does not merit award of an honorable discharge; therefore, he is not entitled to the relief he now requests. 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. _______ _ 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) AR20090007049 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090007049 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1