Search Decisions

Decision Text

ARMY | BCMR | CY2003 | 2003088855C070403
Original file (2003088855C070403.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 February 2004
         DOCKET NUMBER: AR2003088855


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun Director
Ms. Jeanie M. Biggs Analyst


The following members, a quorum, were present:

Mr. Fred N. Eichorn Chairperson
Mr. John P. Infante Member
Ms. Karen A. Heinz` Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his general discharge be upgraded to an honorable discharge.

2. The applicant states, in effect, that he is an ordained minister and free from the childish ways of the Vietnam Era.

3. The applicant does not provide any documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on

25 August 1971. The application submitted in this case is dated 8 April 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. On 2 October 1968, the applicant enlisted in the Regular Army for a period of three years. He was awarded the military occupational specialty (MOS) 71B (clerk typist). He was assigned to Vietnam from 26 April 1969 to 4 April 1970 and advanced to the pay grade of E-3.

4. The Applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows that he is entitled to the following awards: the National Defense Medal; the Vietnam Service Medal, and the Vietnam Campaign Medal with 60 Device.

5. On 24 January 1969, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully engaging in a fistfight.

6. On 24 April 1969, the applicant accepted NJP for being AWOL from 9 April 1969 to 23 April 1969.

7. On 11 December 1969, the applicant accepted NJP for being AWOL from
1 December 1969 to 5 December 1969.

8. On 5 March 1970, the applicant was found guilty by a special court-martial of committing an assault on a private by threatening him with a dangerous weapon (knife). He was sentenced to confinement at hard labor for 4 months (suspended for four months), forfeiture of $61.00 for 4 months and reduction to pay grade
E-1. Sentence was approved on 25 March 1970.

9. On 29 May 1969, the applicant was convicted by a summary court-martial of being disrespectful in language toward his superior non-commission officer, disorderly conduct, and wrongfully having in his possession a .45 caliber pistol. He was sentenced to be confined at hard labor for 30 days (suspended for six months), to forfeit $73.00 per month for one month and reduction to pay grade
E-1.

10. On 26 May 1971, the applicant requested release from active duty for the purpose of attending college.

11. On 1 June 1971, the request for release was approved.

12. On 25 August 1971, he was discharged in pay grade E-3, under the provision of Army Regulation 635-200, Chapter 5. He had 2 years,
10 months and 6 days of creditable active service, 18 days of time lost and
61 days of excess leave. He was issued a General Discharge Certificate.

13. Army Regulation 635-200, in effect at the time, provided the option of characterizing a soldier’s service as under honorable conditions (general discharge) when his or her military record is not sufficiently meritorious to warrant an honorable discharge.

14. The Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge on an unknown date (Board date is not in file).

DISCUSSION AND CONCLUSIONS :

1. The applicant was discharged at his request so he could enroll in college. At that time, he could have been issued either an honorable or a general discharge. Based on the applicant’s record of three NJP’s and two court-martial convictions, a general discharge would appear to have been appropriate.

2. The fact that the applicant has been a productive citizen since his discharge is commendable. However, his post-service conduct is not sufficiently mitigating to warrant upgrading a properly issued discharge

3. The record does not contain any evidence nor has the applicant submitted any evidence to prove an error or injustice.
4. In view of the foregoing, there is no basis for granting the applicant’s request.

5. Records show the applicant should have discovered the error or injustice now under consideration on 25 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 August 1974. 0While, the applicant did not file within the 3-year statute of limitations, it would be in the interest of justice to excuse failure to file in this case and consider the case on its merits because the applicant’s request is based on his post service conduct.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___ fne __ ___ kah ___ ___ jpi __ 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.





                  ___________Fred N. Eichorn_________
                  CHAIRPERSON




INDEX

CASE ID AR2003088855
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20040205
TYPE OF DISCHARGE GD
DATE OF DISCHARGE 19710825
DISCHARGE AUTHORITY AR 635-200, CH 5
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.


Similar Decisions

  • ARMY | BCMR | CY2011 | 20110024198

    Original file (20110024198.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). 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...

  • ARMY | BCMR | CY2008 | 20080007443

    Original file (20080007443.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). He also states that at the time of his discharge in 1971, he was unaware of the problems his discharge would cause because of his mental problems at the time. He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay.

  • ARMY | BCMR | CY2002 | 2002072735C070403

    Original file (2002072735C070403.rtf) Auto-classification: Denied

    The applicant requests correction of military records as stated in the application to the Board and as restated herein. APPLICANT REQUESTS: That his general discharge be upgraded to honorable. He volunteered for duty in Vietnam on 27 November 1967 and departed Germany on 14 May 1968, with a report date to Oakland Army Base, California, on 9 June 1968.

  • ARMY | BCMR | CY1997 | 9710636C070209

    Original file (9710636C070209.TXT) Auto-classification: Denied

    EVIDENCE OF RECORD: The applicant's military records show: The applicant was single when he enlisted in Seattle, Washington on 4 February 1969 for a period of 3 years. He was convicted by a special court-martial on 20 April 1971 and was sentenced to be confined at hard labor for 3 months, reduced to the pay grade of E-1, and a forfeiture of pay. However, the evidence submitted with his application and the evidence of record fail to support his contentions.

  • ARMY | BCMR | CY2009 | 20090004636

    Original file (20090004636.txt) Auto-classification: Denied

    The applicant requests that his Bad Conduct Discharge (BCD) be upgraded to an honorable discharge. He was removed from training and he was transferred to Vietnam on 19 September 1969 for duty as a cannoneer. As a result, clemency in the form of either a fully honorable or a general discharge under honorable conditions is not warranted in this case.

  • ARMY | BCMR | CY2007 | 20070016108

    Original file (20070016108.TXT) Auto-classification: Denied

    The applicant requests that his undesirable discharge be upgraded to an honorable discharge, and that his records be corrected to show that he was discharged in the pay grade of E-4. He states that he does not understand how he could be reduced to the pay grade of E-1 without being convicted by a court-martial. 360 144.0000/ADMINISTRATIVE DISCHARGE 2.

  • ARMY | BCMR | CY2014 | 20140012006

    Original file (20140012006.txt) Auto-classification: Denied

    The applicant's records show he was born in June 1951 and enlisted in the Regular Army for a period of 3 years, at 17 years and 4 months of age, on 25 October 1968. An endorsement, signed by the Commanding General, Headquarters, U.S. Army Support Command, Vietnam, on 2 July 1971 approving a recommendation for the applicant's discharge in accordance with Army Regulation 635-212 by reason of unfitness with an under other than honorable conditions characterization of service, a waiver of the...

  • ARMY | BCMR | CY2009 | 20090000292

    Original file (20090000292.txt) Auto-classification: Denied

    The applicant states, in effect, that he served in Vietnam for 6 months when he was wounded. The evidence of record shows that the applicant served less than 2 months in Vietnam from 27 October 1970 until he was seriously injured on 5 December 1969 and medically evacuated out of Vietnam. Although, the applicant's record show that he was tried and convicted by civil court of the unlawful distribution of heroin, there is no evidence in his official military personnel file and the applicant...

  • ARMY | BCMR | CY2009 | 20090016306

    Original file (20090016306.txt) Auto-classification: Denied

    The applicant's military personnel records show he enlisted in the Regular Army on 16 February 1968 for a period of 2 years. The applicant's service medical records were not available for review. Army Regulation 635-200 states a general discharge is a separation from the Army under honorable conditions.

  • ARMY | BCMR | CY2011 | 20110018094

    Original file (20110018094.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 6 March 2012 DOCKET NUMBER: AR20110018094 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. Therefore, clemency in the form of an honorable discharge or a general discharge is not warranted in this case.