RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 February 2007
      DOCKET NUMBER:  AR20060010604


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |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 that his undesirable discharge be upgraded to
honorable; that his narrative reason for discharge be changed to
“convenience of the Government”; and that his reenlistment (RE) code be
changed to RE code 1.

2.  The applicant states his ability to serve was impaired by his youth.
He enlisted as soon as he turned age 18, after he had started running
around with a bad crowd.  Personal problems impaired his ability to serve.
His home life was in turmoil.  His parents were about to divorce, they had
very little money, and he was the oldest of eight children.  His use of
drugs and alcohol impaired his ability to serve.  Prior to going to Vietnam
he had never been involved with drugs.  He used alcohol to cope with his
home problems.  In Vietnam, drugs were everywhere and easily obtained.

3.  The applicant states he could not adjust to State-side life after he
returned from Vietnam.  His experience, and especially the way he had been
treated at the end of his tour, caused him to blame the military for
problems going on in his life.  When a sergeant offered him a discharge, he
went for it without thinking of how it might affect his future.  He was
told an undesirable discharge was not as bad as a dishonorable discharge,
and if he cleaned up his act he could probably get it upgraded.

4.  The applicant states he received awards and decorations, including the
National Defense Service Medal, the Parachutist Badge, the Republic of
Vietnam Campaign Medal, the Vietnam Service Medal, and the Combat
Infantryman Badge.  He had combat service.  He had no problems until he
returned from the field in late 1969 to begin out-processing.

5.  The applicant states his record of promotions showed he was generally a
good service member.  He had a prior honorable discharge.  He has been a
good citizen since his discharge.

6.  The applicant provides two self-authored statements; a statement of
support from his spouse; and two DD Forms 214 (Armed Forces of the United
States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 June 1970.  The application submitted in this case is dated
16 July 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 was born on 28 February 1950.  He enlisted in the Regular
Army on 5 April 1968.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty 63B
(Wheel Vehicle Repairman).  He completed basic airborne training.

4.  On 4 December 1968, while assigned in Germany, the applicant was
honorably discharged for the purpose of reenlisting for assignment to
Vietnam.  He reenlisted on 5 April 1968.

5.  The applicant was assigned to Headquarters and Headquarters Company, 3d
Battalion, 503d Infantry, 173d Airborne Brigade on or about 17 February
1969. He was promoted to Private First Class, E-3 on 20 February 1969.
His DA Form 20 (Enlisted Qualification Record) shows he performed duties as
a wheel vehicle mechanic.  He was reassigned to Headquarters and
Headquarters Battery, 7th Battalion, 13th Artillery on 7 November 1969.

6.  On 22 December 1969, the applicant accepted nonjudicial punishment
under Article 15, Uniform Code of Military Justice for wrongfully appearing
without his trousers bloused and without a cap on his head.

7.  On 5 February 1970, the applicant was convicted by a special court-
martial of one specification of sleeping on his post as a sentinel and of
two specifications of failing to go at the time prescribed to his appointed
place of duty.  He was sentenced to be confined at hard labor for two
months and to forfeit $50.00 pay for four months.  On 11 March 1970, the
unexecuted portion of the sentence to confinement was suspended until 25
March 1970.

8.  In February 1970, action was initiated to separate the applicant under
the provisions of Army Regulation 635-212 for unfitness.  This action was
apparently discontinued.

9.  On 11 March 1970, the applicant departed Vietnam.  He was assigned to
Headquarters and Headquarters Company, 2d Battalion (Airborne), 508th
Infantry, Fort Bragg, NC.
10.  On 6 May 1970, the applicant completed a psychiatric evaluation.  No
psychiatric diagnosis was made.  He was found to be mentally responsible,
able to distinguish right from wrong and to adhere to the right, and to
have the mental capacity to understand and participate in board
proceedings.  It was believed that the applicant would not adjust to
further military service and further rehabilitative efforts probably would
be nonproductive.

11.  The applicant’s discharge packet is incomplete.  On 6 May 1970, the
company commander initiated separation action on the applicant under Army
Regulation 635-212 for unfitness; specifically, the unauthorized use of
habit-forming drugs and substandard appearance.  On 11 May 1970, the
commander recommended the applicant be discharged under the provisions of
Army Regulation 635-212 for unfitness with an Undesirable Discharge
Certificate.

12.  The approval action is not available.  A 15 June 1970 letter from an
assistant adjutant forwarded the applicant’s approved discharge to the
separations branch.

13.  On 23 June 1970, the applicant was discharged, with an undesirable
discharge under other than honorable conditions, in pay grade E-1, under
the provisions of Army Regulation 635-212 for unfitness.  He had completed
2 years, 1 month, and 19 days of creditable active service during his
second enlistment with 30 days of lost time (confinement).  He was given RE
codes of 3 and 3B (persons who had lost time during their period of
service), a reason and authority for separation of Army Regulation 635-212,
and a separation code (SPN) of 28B (unfitness, frequent involvement in
incidents of a discreditable nature with civil or military authorities).

14.  The applicant’s DD Form 214 for the period ending 23 June 1970 shows
he was awarded the National Defense Service Medal, the Parachutist Badge,
the Republic of Vietnam Campaign Medal, the Vietnam Service Medal, and the
Combat Infantryman Badge.  His records do not contain orders for the Combat
Infantryman Badge, and it is not listed in item 41 (Awards and Decorations)
on his DA Form 20.

15.  On 12 January 1987, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

16.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  The regulation
provided, in pertinent part, that members involved in frequent incidents of
a discreditable nature with civil or military authorities, sexual
perversion, drug addiction or the unauthorized

use or possession of habit-forming drugs or marijuana, an established
pattern for shirking, an established pattern showing dishonorable failure
to pay just debts or failure to contribute adequate support to dependents,
were subject to separation for unfitness. Such action would be taken when
it was clearly established that despite attempts to rehabilitate or develop
him as a satisfactory Soldier further effort was unlikely to succeed.

17.  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.

18.  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.

19.  Pertinent Army regulations provide that prior to discharge or release
from active duty individuals will be assigned RE codes based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies and procedures for enlistment and
processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.

20.  RE code 3 applies to persons not qualified for continued Army service,
but the disqualification is waivable.  RE code 1 applies to persons fully
qualified for continued Army service.

21.  Army Regulation 600-8-22 (Military Awards) provides for award of the
Combat Infantryman Badge to a Soldier who is an infantryman satisfactorily
performing infantry duties, who is assigned to an infantry unit during such
time as the unit is engaged in active ground combat, and must actively
participate in such ground combat.  Campaign or battle credit alone is not
sufficient for award of the CIB.

22.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB
are by statute allowed 15 years to apply there, and that this Board's
exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
ABCMR should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been considered.

2.  The applicant may have been only 18 years old when he enlisted, and
have come from a dysfunctional family life; however, he successfully
completed basic combat training, advanced individual training, and
parachutist training.  He also successfully completed 8 months of service
in an overseas assignment, while in Germany.  He should have known what the
Army’s standards of conduct were.

3.  The applicant contended his use of drugs and alcohol impaired his
ability to serve.  Drugs may have been “everywhere and easily obtained”
while in Vietnam; however, thousands of other Soldiers in Vietnam resisted
the temptations to use drugs.  If his ability to serve was impaired due to
his use of drugs and alcohol, it was impaired due to his own misconduct.

4.  The applicant contended he could not adjust to State-side life after he
returned from Vietnam.  Again, it appears it was his misconduct in using
illegal drugs that primarily led to his failure to adjust to State-side
military life.  The type of discharge he was given was not an option that
he could have gone “for it without thinking of how it might affect his
future” or not.  The applicant’s statements (and conduct) infer that he was
headed for court-martial action at least for drug use/possession.  As it
is, his undesirable discharge is “not as bad as a dishonorable discharge”
could have been, since his discharge was administrative in nature whereas a
dishonorable discharge that could have resulted from a general court-
martial would have been a Federal conviction.

5.  The applicant contended he received awards and decorations.  Most of
the awards he received were service medals (the National Defense Service
Medal, the Republic of Vietnam Campaign Medal, and the Vietnam Service
Medal).  He was awarded the Parachutist Badge.  It is noted that his DD
Form 214 for the period ending 23 June 1970 shows he was awarded the Combat
Infantryman Badge; however, he was not an infantryman, and his DA Form 20
does not show that he even performed infantryman duties.  It does not
appear that he met the eligibility criteria for award of the Combat
Infantryman Badge.

6.  The applicant contended he had combat service and that he had no
problems until he returned from the field in late 1969 to begin out-
processing.  It is noted that he accepted nonjudicial punishment in
December 1969 in part for sleeping while on sentinel duty.  His previous
combat service should have made him aware of the seriousness of such a
breach of discipline.

7.  The applicant contended his record of promotions showed that he was
generally a good service member.  He was promoted to Private First Class, E-
3 upon arrival in Vietnam with no record of promotions between February
1969 and when he accepted the Article 15 in December 1969.  It is
acknowledged that he had a prior honorable discharge, and that prior
honorable discharge was recognized on his initial DD Form 214.

8.  The applicant contends he has been a good citizen since his discharge.
His post-service conduct is commendable; however, it is not sufficient to
warrant the relief requested.

9.  In the absence of evidence to the contrary, it is presumed the
applicant’s administrative separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.  The type of discharge directed, the reason
for his discharge, and his RE code(s) were appropriate considering all the
facts of the case.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 12 January 1987.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 11 January 1990.  However, 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

__jea___  __jlp___  __eem___  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.




                                  __James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010604                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070206                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700623                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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