RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20060001704


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      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 undesirable discharge (UD),
characterized as under other than honorable conditions (UOTHC), be upgraded
and that the reason for his discharge, "misconduct conviction by civil
court," be changed.

2.  The applicant states, in effect, he enlisted in the US Army on 28 March
1969 to serve his country in a time of war.  He was unable to go airborne
as he wanted to but settled for an MOS (military occupational specialty) of
51N20, water supply specialist.  He excelled in basic and advanced
individual training (AIT) from 28 March 1969 to 15 August 1969.  He was
assigned to Headquarters and Headquarters Company (HHC), 4th Engineer
Battalion, 4th Infantry Division, in Pleiku, RSVN (Republic of South
Vietnam), where he served in the field as the PFC (Private First Class) in
charge of water supply field units at various bases and LZ’s (Landing Zone)
in the area.

3.  While in the field, he was involved in two fire fights while stationed
at his post at LZ, English.  On the 12 December 1969, he contracted malaria
and was medically evacuated unconscious to the 71st Evacuation Hospital,
Cam Ranh Bay.  He lost all of his personal effects and had little
recollection during that time. On 1 January 1970, he went back to his unit
in Pleiku where he developed further medical problems related to a problem
he had as a preteen and was under control until after he had malaria.  He
started to have bedwetting incidents and could not control it.  By February
1970, he was no longer able to hide it and sought medical help.  They
concluded that it was a medical condition and sent him to Japan in March
1970 for further diagnosis.

4.  The applicant states he was sent to Walter Reed for treatment from
10 March to 22 April 1970.  When discharged, he was reassigned to Fort
Riley, Kansas, Headquarters and Headquarters Company (HHC), 1st Battalion,
28th Infantry Division, as an OJT (On the Job Training) assistant gunner
for one day then reassigned as a heavy wheel vehicle mechanic.  He was
embarrassed by the exposure of his medical problem and felt not needed or
welcomed at his new duty station.  His bed wetting had reoccurred and on
27 July 1970, he took an Article 15 rather than expose the fact to his
sergeant that he had wet himself.
He had other personal family problems at this time and was under extreme
stress.  His performance in his duties suffered and his sister came out to
stay near him off post and pregnant with nowhere else to go.  He tried to
get help through normal channels and got no help.  He ended up trying to
steal stuff off base from a boarded up gas station to sell for enough money
to help her out.

5.  The applicant states that he was 19 years old and under circumstances
he could not control and feels that he would normally never have acted in
this manner.  He was told he had no option but to accept an undesirable
discharge.  He was very depressed and did not fight it.  He was not given
legal counsel and after the way they had treated him on base he only wanted
out.  He did not know or care about the consequences at the time.  His
civilian conviction was expunged after a year’s probation because he was a
minor at that time.

6.  The applicant concludes that given it to do over, he would never have
done what he did.  He has spent his whole life trying to better himself and
has tried to live with honor.  He taught for 8 years as a Vo (Vocational)
tech (technical) instructor and in 3 years with Ford where he became a
senior master tech.  In May 2005, he had to go out on disability and is now
retired.  He feels that up till coming back from the RSVN, his service was
honorable and due to circumstances beyond his control, he accepted an UD.

7.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 March 1971, the date of his discharge.  The application
submitted in this case is dated 2 January 2006.

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 limitations 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.  The applicant's military records show he entered active duty on
28 March 1969, as a water supply specialist (51N).  He was advanced to pay
grade E-3 on 7 October 1969.  He served in Vietnam from 8 September 1969 to
10 March 1970.




4.  Between 3 November 1969 and 27 July 1970, he received nonjudicial
punishment on two occasions under Article 15, UCMJ (Uniform Code of
Military Justice), for violation of a lawful regulation, by speeding
35 miles per hour (MPH) in a 25 MPH zone, and for failing to obey a lawful
order from his noncommissioned officer.  His punishments consisted of a
reduction to pay grade E-2, forfeitures of pay, and restriction and extra
duties.

5.  He was convicted by a summary court-martial on 25 September 1970, of
being absent without leave (AWOL) from 31 August to 4 September 1970.  His
punishment consisted of a forfeiture of pay and hard labor without
confinement for 30 days.

6.  The applicant was charged by civil authorities with committing burglary
and theft on 27 January 1971.  He appeared in civil court on 8 February
1971, and entered a plea of guilty to both charges.  Based upon his plea
the court accepted the pleas of guilty and found him guilty and sentenced
him to a term of not less than one nor more than 10 years on both counts to
run concurrently.

7.  On 22 February 1971, the applicant's commander recommended that the
applicant be discharged from the service, under the provisions of Army
Regulation 635-206, for his civil court conviction.

8.  On 5 March 1971, after being advised of the contemplated action by the
unit's adjutant, he voluntarily waived representation by counsel.  He also
waived consideration of his case by a board of officers and personal
appearance before a board of officers.  He elected not to submit a
statement in his own behalf and elected not to appeal his conviction for
burglary and grand larceny.

9.  On 19 March 1971, the approval authority directed that the applicant be
discharged and issued an UD.  The applicant was discharged on 31 March
1971, under the provisions of Army Regulation 635-206, due to his civil
court conviction.  He had a total of 1 year, 9 months, and 29 days of
creditable service and had 64 days of lost time due to AWOL and
confinement.

10.  Item 44 (Time Lost), of the applicant's DA Form 20 (Enlisted
Qualification Record), shows that he was placed in confinement on 24 June
1970 (1 day) and confined by civil authorities from 28 January through
31 March 1972, (63 days).





11.  Item 11c (Reason and Authority), of the applicant's DD Form 214, shows
the entry "284", which is his "SPN" (Separation Program Number).

12.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

13.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 33 of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be considered for separation.  An undesirable discharge
was normally considered appropriate. 

14.  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.

15.  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.

16.  Army Regulation 635-5-1 states that separation codes are three-
character alphabetic combinations, which identify reasons for, and types of
separation from active duty.  The primary purpose of a separation code is
to provide statistical accounting of reasons for separation.  They are
intended exclusively for the internal use of DOD and the military services
to assist in the collection and analysis of separation data.  It notes that
"284", in effect at that time, is the appropriate separation program
number/code for individuals separated for misconduct, convicted or adjudged
as juvenile offender by civil court during current term of service of
active military service.





17.  Table 1, Enlisted Separation Program Designator Chart, of Army
Regulation 680-3-2, in effect at that time, establishes the proper SPN
codes to assign to soldiers separating from the Army.  This table confirms
that the SPN of "284" is the appropriate code for individuals discharged
for misconduct, convicted or adjudged a juvenile offender by a civil court
during an individual's current term of service of active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no procedural errors, which
would tend to jeopardize his rights. 

2.  The type of separation directed and the reasons for that separation
were appropriate considering all of the facts of the case.

3.  It is apparent that his discharge was based on his several incidents of
misconduct, which included nonjudicial punishment on two occasions, under
Article 15, UCMJ, one summary court-martial, and his civil court
conviction.  Therefore, there is insufficient basis to support his request
for an upgrade of his UD.

4.  The applicant’s contentions, which describe incidents that occurred
while he was serving on active duty, which were personal in nature, were
considered; however, there is no evidence in his service record and he has
provided none to corroborate his contentions.  These contentions, if
factual, do not mitigate his conduct and do not support an upgrade of his
discharge.

5.  Contrary to the applicant's assertion that he was not given legal
counsel and he only wanted out, the evidence shows he waived his rights to
representation by appointed counsel, military counsel or to civilian
counsel at his own expense.  This evidence further shows the applicant
clearly indicated that he waived his rights, and elected not to submit a
statement in his own behalf, and elected not to appeal his conviction.

6.  A review of the applicant's records show that he was in civil
confinement during the processing of his separation.  It is apparent that
this command ensured that the proper documents were prepared and signed by
the proper authorities to ensure that he was discharged according to
regulatory authority.  Separation was conducted in accordance with Army
Regulation 635-206, for civil court conviction.

7.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

8.  The Board notes that the applicant’s narrative reason for separation is
not listed on his DD Form 214.  However, the "SPN" of "284" is shown in
item 11c, of his DD Form 214.  The evidence shows that he was involuntarily
discharged for misconduct, due to his civil court conviction.  The SPN
applied to his DD Form 214 is the appropriate code for the discharge he
received; therefore, he is not entitled to a change of his "SPN" of "284",
which represents his narrative reason for discharged of "misconduct by
civil court."

9.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 March 1974.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__T____  __EM____  _CD ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.


2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____Marla J. N. Troup_______
                                            CHAIRPERSON




|CASE ID                 |AR20060001704                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19710331                                |
|DISCHARGE AUTHORITY     |AR 635-200, CHAP 206                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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