IN THE CASE OF: BOARD DATE: 10 June 2010 DOCKET NUMBER: AR20090020436 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 to an honorable discharge. 2. The applicant states he was not discharged fairly. He was faithful to the Army and his company and wanted to be a leader and career Soldier. He completed two tours in Vietnam and he was awarded a Bronze Star Medal and the Vietnam Service Medal with three bronze service stars, and he received a "battle field promotion" to sergeant (SGT)/E-5 in 1969. He was a Vietnam veteran and a young man who had a problem of being harassed by an officer. 3. The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 29 December 1969, 11 November 1970, and 16 January 1973. 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. His military records show he enlisted in the Regular Army in the rank/grade of private (PV1)/E-1 on 5 April 1968, for 3 years. He completed basic combat and advanced individual training and he was awarded military occupational specialty 36K (Field Wireman). He was advanced to private first class (PFC)/E-3 on 24 November 1968. He served in Vietnam from 24 November 1968 to 23 November 1969. 3. On 18 March 1969, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for sleeping while posted as a guard on 2 March 1969. His punishment included a reduction to private (PV2)/E-2 and a forfeiture of $50.00 pay. 4. He was advanced to specialist four (SP4)/E-4 on 6 September 1969. He was honorably released from active duty on 29 December 1969 for the purpose of immediate reenlistment. He reenlisted on 30 December 1969 for 4 years. He was promoted to SGT/E-5 on 30 April 1970. 5. On 19 September 1970, he was punished under Article 15, UCMJ, for violation of a lawful general regulation on 18 September 1970 by unlawfully possessing a knife with a blade over 3 inches and for operating a privately owned vehicle without a registration and possessing an open can of beer in a moving vehicle on 9 June 1970. His punishment included a reduction to SP4/E-4 (suspended for 30 days, at which time if not sooner vacated, it would be remitted without further action), a forfeiture of $50.00 pay for 1 month, and 14 days of restriction. 6. He was honorably discharged on 11 November 1970 for the purpose of immediate reenlistment. He reenlisted on 12 November 1970 for 6 years. He served a second tour in Vietnam from 25 January 1971 to 9 December 1971. 7. On 2 June 1972, he was punished under Article 15, UCMJ, for absenting himself from his appointed place of duty on 20 May 1972. His punishment included a reduction to SP4/E-4 (suspended for 60 days) and a forfeiture of $100.00 pay. 8. On 21 June 1972, his suspended reduction to SP4/E-4 was vacated and he was reduced effective 2 July 1972. 9. An Office of the Department of Psychiatry, Mental Hygiene Consultation Service, Fort Carson, CO, Certificate of Neuropsychiatric Report, dated 24 October 1972, shows the examining psychiatrist, a military Medical Corps doctor, diagnosed him with an immature personality. The examining psychiatrist stated he was a pleasant young man in a one-on-one situation. However, he was easily frustrated and unable to channel his anger in acceptable modes. He reacted to the least amount of stress with impulsive behavior, such as reenlisting or arguing with superiors. The examining psychiatrist also stated short-term psychotherapy at the Mental Hygiene Consultation Service or counseling by his commander would be to no avail. He was cleared psychiatrically for any administrative action deemed appropriate by the command. The examining psychiatrist recommended he be discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability). 10. On 25 October 1972, he was punished under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 24 October 1972. His punishment included a reduction to PFC/E-3. 11. On 15 November 1972, his unit commander advised him that he was recommending his elimination from the service under the provisions of Army Regulation 635-212 due to his shirking of his duties and failure to pay just debts. On the same day, he acknowledged notification of the proposed action. He stated he thought getting out of the Army was best for the Army and himself and all he wanted was to get out. 12. On 8 December 1972, after consulting with counsel, he acknowledged receipt of his proposed elimination from the service for unfitness. He elected not to have his case heard before a board of officers and elected not to submit a statement in his own behalf. He also acknowledged he understood the effects of a discharge under conditions other than honorable and he could be ineligible for both State and Federal benefits as a veteran and could expect to encounter substantial prejudice in civilian life. 13. On 12 December 1972, his battalion commander concurred with the discharge recommendation because of unfitness with an Undesirable Discharge Certificate. On 14 December 1972, his division commander recommended approval of his discharge by reason of unfitness with an Undesirable Discharge Certificate. 14. On 5 January 1973, the appropriate separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, by reason of unfitness, and directed reduction to PV1/E-1 and the issuance of an Undesirable Discharge Certificate. 15. He was accordingly discharged on 16 January 1973, under the provisions of Army Regulation 635-212, with a character of service of under conditions other than honorable with issuance of an Undesirable Discharge Certificate. 16. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 17. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: * because of frequent incidents of a discreditable nature with civil or military authorities * sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child * drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern of shirking * an established pattern of dishonorable failure to pay just debts * an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments) 18. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, provided that an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. 19. Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization. DISCUSSION AND CONCLUSIONS: 1. In view of the circumstances in this case, he is not entitled to an upgrade of his undesirable discharge to an honorable or general discharge. He has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks. 2. His contentions have been noted; however, the evidence of record shows that during his service he received four Article 15s resulting in his reductions in grade and forfeitures. He was advised by his unit commander that his elimination was based on his shirking of his duties and failure to pay just debts. He also stated he wanted out of the Army. He was psychiatrically cleared and recommended for an administrative separation under the provisions of Army Regulation 635-212. 3. The evidence further shows that after consulting with counsel, he acknowledged the proposed separation action for unfitness. He waived his opportunity to appear before a board of officers and elected not to submit a statement in his own behalf. He also acknowledged he understood the effects of being issued an undesirable discharge. He has provided no evidence or argument to show his discharge should be upgraded and his military records contain no matter that would warrant an upgrade of his discharge. It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. 4. In order to justify correction of a military record, he must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. He failed to submit evidence that would satisfy this requirement. In view of the foregoing, there is no basis for granting the requested relief. 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) AR20090020436 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090020436 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1