RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060011064 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Jerome Pionk

Member

Mr. Edward 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 general discharge under the provisions of the Special Discharge Review Program (SDRP) be upgraded to honorable.

2.  The applicant states, in effect, that his discharge should be upgraded to honorable for the following reasons:  (1) clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; (2) he had combat service; (3) he was wounded in action; (4) he has been a good citizen since his discharge; (5) his record of court-martial convictions indicate only isolated or minor offenses; (6) his record of being absent without leave (AWOL) indicates only minor or isolated offenses; (7) he received awards and decorations; (8) his medical or physical problems impaired his ability to serve; and (9) he should have gotten a medical discharge because he was not medically qualified to serve.

3.  The applicant provides a 2003 letter from a clinical psychologist; a copy of his DD Form 214 (Report of Separation from Active Duty); Army Discharge Review Board (ADRB) Proceedings, dated 17 October 1979; a letter, dated 24 April 1969, from a Member of Congress; an undated letter to a Member of Congress; a letter, dated 7 December 1972, to a Member of Congress from the Board for Correction of Military Records; and a letter, dated 11 December 1972, from a Member of Congress.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 24 March 1969.  The application submitted in this case is dated 19 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.  A Memorandum of Consideration is not available to reflect the basis for the denial of the applicant’s case on 19 January 1972.  Therefore, this case is being considered “de novo”.


4.  The applicant was inducted on 25 January 1968.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (light weapons infantryman).  He arrived in Vietnam on 24 June 1968. 

5.  While in Vietnam, on 1 December 1968, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of being AWOL (from 10 October 1968 to 23 October 1968 and from 5 November 1968 to 
13 November 1968) and disobeying two lawful commands.  He was sentenced to be confined at hard labor for 6 months, to forfeit $73 per month for 6 months, and to be reduced to E-1.  On 13 December 1968, the convening authority approved the sentence, but that portion of the sentence pertaining to confinement was suspended.  On 27 January 1969, the suspended portion of the sentence to confinement was vacated.  On 10 February 1969, the unexecuted portion of the sentence to confinement was suspended until 10 July 1969. 

6.  On 28 January 1969, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness.  

7.  On 30 January 1969, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111211.

8.  While in Vietnam, on 27 February 1969, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 9 January 1969 to 23 January 1969.  He was sentenced to be confined at hard labor for
6 months and to forfeit $74 pay per month for 6 months.  On 10 March 1969, the convening authority approved the sentence but suspended confinement in excess of 1 month for 5 months.  On 19 March 1969, the sentence to confinement was suspended until 30 April 1969.

9.  On 23 February 1969, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf. 

10.  On 20 March 1969, the separation authority approved the recommendation for separation and directed that he be furnished an undesirable discharge.  

11.  The applicant was transferred to the United States on 21 March 1969.

12.  On 24 March 1969, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year and 2 days of creditable service with 58 days of lost time due to AWOL and confinement.  He was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device 1960, the Vietnam Service Medal, one award of the Overseas Service Bar, and three marksmanship qualification badges.

13.  There is no evidence of record which shows the applicant was wounded in action. 

14.  On 19 May 1970, the ADRB denied the applicant’s request for an honorable discharge.  On 25 May 1977, the applicant's records were reviewed under the provisions of the SDRP and a general discharge was directed following review under the provisions of Public Law 95-126.  On 15 November 1978, the ADRB re-reviewed the applicant's case as required by Public Law 95-126 and did not affirm his SDRP discharge upgrade (a general discharge). 

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 is the current regulation governing the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

18.  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 evidence of record does not support the applicant’s contention that he was wounded in action.

2.  Good post service conduct alone is normally not a basis for upgrading a discharge.

3.  Although the applicant contends that his record of court-martial convictions and his record of AWOL indicate only isolated or minor offenses, evidence of record shows the applicant went AWOL on three separate occasions while serving in Vietnam.  In addition, he disobeyed two lawful commands.

4.  Although the applicant contends that his medical or physical problems impaired his ability to serve and that he should have gotten a medical discharge because he was not medically qualified to serve, medical evidence of record shows that he was found qualified for separation on 30 January 1969.

5.  The applicant’s administrative separation in 1969 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 and the reasons therefore were appropriate considering all the facts of the case.

6.  The applicant’s undesirable discharge was upgraded to a general general under the SDRP on 25 May 1977.  On 15 November 1978, the general discharge was not affirmed under the provision of Public Law 95-126.  

7.  The applicant’s combat service and his awards and decorations were considered.  However, his record of service also included two special court-martial convictions and 58 days of lost time while in a combat zone.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 15 November 1978.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 14 November 1981.  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

JA_____  __JP____  __EM____  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 Anderholm_____
          CHAIRPERSON


INDEX

CASE ID
AR20060011064
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
GD (SDRP)
DATE OF DISCHARGE
19770525
DISCHARGE AUTHORITY
AR 635-212  
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.