RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060012832 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Scott W. Faught

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 dishonorable discharge (DD), characterized as under other than honorable conditions (UOTHC), be upgraded to a general discharge, under honorable conditions.

2.  The applicant states, in effect, that he was suffering from emotional distress because of his Vietnam service and mother’s death after he came home.  While stationed at Fort Wolters, Texas, he was offered no counseling.  He felt like he was on his own and had to support his new family.  He served honorably in Vietnam.  He also states that he was not aware of the 3-year rule until he spoke to a Veterans Services Officer with the VFW (Veterans of Foreign Wars). 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 July 1970, the date of his discharge.  The application submitted in this case is dated 21 August 2006 but was received for processing on 11 September 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 record shows he was inducted on 25 July 1966, for 2 years, with an established expiration of term of service (ETS) of 24 July 1968.  The applicant successfully completed basic combat training and advanced individual training at Fort Polk, Louisiana.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 64A, Light Vehicle Driver.  He was promoted to pay grade E-3 on 5 January 1967.



4.  The applicant served in Vietnam from 12 December 1966 to 2 May 1967.

5.  He was convicted by three special courts-martial, pursuant to his guilty pleas, of being absent without leave (AWOL) from 7 August 1967 to 25 September 1967, from 10 October 1967 to 3 November 1967, and from 20 November 1967 to 21 February 1968.  His sentences consisted of confinement at hard labor, forfeitures of pay, and reduction to the pay grade of E-1.

6.  He was convicted, contrary to his pleas by a general court-martial on 4 March 1970, of being AWOL from 5 September 1968 to 9 May 1969, from 15 May 1969 to 18 July 1969, and from 21 July 1969 to 3 December 1969, and escape from the lawful custody of a military policeman on 15 May 1969.  His sentence consisted of confinement at hard labor for 1 year, a forfeiture of pay, and dishonorable discharge.

7.  On 30 April 1970, the United States Army Court of Military Review affirmed the findings and sentence.

8.  On 6 July 1970, the applicant was discharged from the Army, pursuant to the sentence of a general court-martial, and was issued a DD.  He had completed 1 year, 1 month, and 19 days of creditable service and had 366 days of lost time due to AWOL and confinement prior to his scheduled ETS and 657 days of lost time due to AWOL and confinement subsequent to his normal ETS.

9.  The applicant's case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

10.  The applicant provides an unsigned character reference letter, from his son-in-law, who is currently serving in the United States Navy.  He states that the applicant served his country during Vietnam and that it was very honorable for him to serve.  He states that the applicant is living proof of honor, courage, and commitment. 

11.  The applicant provides an unsigned letter, from a dear friend, who states that he had a big heart and a great sense of values.  He believes that the applicant is a true Veteran and American in every sense.  He also believes that from a Veteran's point of view that the applicant is deserving of an honorable separation allowing him to utilize the valuable benefits provided to those Americans that served during the Vietnam Era.



12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  

13.  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.

14.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.
Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The evidence of record shows that the applicant was convicted by three special courts-martial and a general court-martial for AWOL for several instances of AWOL and escape.  He was discharged pursuant to the sentence of a general court-martial and was issued a DD.  

3.  The applicant has provided no evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant alleges that he was suffering from emotional distress because of his Vietnam service and mother’s death after he came home and he was offered no counseling.  He also felt like he was on his own and had to support his new family.  There is no evidence, and the applicant has provided none, to support his allegations.

5.  The applicant states that he served honorably in Vietnam.  A review of his records shows no misconduct occurred during his service in Vietnam from 12 December 1966 to 2 May 1967.  His first record of misconduct occurred two months after his return from Vietnam.  It is noted that his honorable service in Vietnam does not support an upgrade of his DD.

6.  The evidence of record clearly shows that it has been 36 years or more since he received his DD.  However, there is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he submitted an application for an upgrade of his discharge to the ABCMR within its 3-year statute of limitations.

7.  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.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 July 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 July 1973.  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

___LDS_  __JCR___  ___SWF_  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.




_____Linda D. Simmons___
          CHAIRPERSON




INDEX

CASE ID
AR20060012832
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19700706
DISCHARGE AUTHORITY
AR 635-200, paragraph 11-1b
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.