RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060012991 


	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

Mr. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine I. Fields

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 discharge be upgraded. 

2.  The applicant states that the incident that led to his court-martial was an act of a young Soldier who acted inappropriately.  He saluted the flag wearing a black glove and this was not a sign of disrespect but one of unity and he should not have been punished for it.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 6 June 1969, the date of his release from active duty.  The application submitted in this case is dated 1 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 records show the applicant entered active duty on 13 January 1967, completed training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  He was assigned duty in Vietnam for the period 19 June 1967 through 17 June 1968 and was wounded in combat twice.

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 

	a.  29 January 1967 for absenting himself from his appointed place of duty;

	b.  6 March 1967 for failure to obey a lawful order and assault on a Soldier in the performance of his duties;

	c.  4 May 1967 for sleeping on his post (outside fireguard); 
	
	d.  16 May 1967 for sleeping on his post (sentinel duty); and

	e.  13 December 1968 for failure to obey a lawful general regulation by driving inattentively resulting in an accident with personal injury to another.

6.  The applicant was tried by special court-martial, on four occasions, and found guilty as follows on;

	a.  28 October 1968, for failure to go to his appointed place of duty, on three occasions; disrespect toward a commissioned officer; and disobeying a lawful order from a commissioned officer.  He was sentenced to 6 months confinement and forfeiture of $70.00 pay per month for 6 months; 

	b.  19 November 1968, for being AWOL (absent without leave) from 6 August 1968 through 4 September 1968 and 14 September 1968 through 7 October 1968 and breaking restriction.  He was sentenced to 6 months confinement and forfeiture of $73.00 pay per month for 6 months; 

	c.  20 December 1968, for failure to obey a lawful general regulation by failing to render a hand salute at the time the field music sounded "To the Colors."  The date of this offence was 12 December 1968.  He was sentenced to 3 months confinement; and

	d.  8 March 1969 for disobeying a lawful command from a commissioned officer and violation of a lawful general regulation by storing a privately owed firearm in his wall locker.  He was sentenced to forfeiture of $73.00 pay per month for 6 months (suspended for 6 months), 6 months confinement, and reduction in grade to private (E-1).

7.  On 20 March 1969 the unexecuted portion of his sentence to confinement was suspended until his date of discharge, unless vacated.

8.  The record indicates that the applicant was flagged (suspension of favorable personnel actions) for consideration of being discharged under Army Regulation 635-212.  The date the flag was initiated is not of record; however, it was removed on 22 May 1969.

9. On 6 June 1969 the applicant was separated from active duty and transferred to the United States Army Reserve (USAR) Control Group (Annual Training), under the provisions of Army Regulation 635-200, chapter 2, for the expiration of his term of service.  He had 1 year, 11 months, and 29 days of creditable service and 166 days of lost time due to confinement and AWOL.  He received an under honorable conditions (General) characterization of service. 

10.  The applicant's DD Form 214 lists his awards as the Purple Heart with one Oak Leaf Cluster, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with "1960" device, the Combat Infantryman Badge, the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

11.  The DD Form 214 indicates the applicant was in confinement for the following periods; 28 October 1968 through 17 November 1968, 26 December 1968 through 26 January 1969, 25 February 1969 through 19 March 1969, and 2 April 1969 through 15 April 1969, for a total of 112 days.

12.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year filing statute of limitations.

13.  Army Regulation 600-8-2, sets forth the regulations, policy and criteria for suspension of favorable personnel actions (FLAGS).  Paragraph 1-12 requires initiation of a FLAG when a service member is under charges, restraint or investigation.  This bar to favorable action is in effect until the member is released without charges, charges are dropped, or punishment is completed.  

14.  Army Regulation 635-200, sets forth the policies and procedures for enlisted personnel separations.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) in pertinent part states:  “A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5.”  “It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service.”  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that an undesirable discharge (UD) is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. 

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because-of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The record indicates the applicant failed to render a salute on 12 December 1968, and not, as he states, that the salute rendered was inappropriate.  

2.  His characterization of service was based on the totality of his record which includes the four special court-martials, five NJPs, and 166 days of lost time; not just on the single 12 December 1968 incident as he implies.  Further, up until two weeks before his separation, his chain of command was considering an administrative discharge which could have resulted in his receipt of an UD. 

3.  The separation proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant received considerable leniency in the characterization of his service in that he could have been administratively discharged and received an undesirable discharge due to his frequent incidents of a discreditable nature with military authorities. 

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 June 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 June 1972.  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

_KLW___  __LMD __  __EF____  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.




__Kenneth L. Wright___
          CHAIRPERSON


INDEX

CASE ID
AR20060012991
SUFFIX

RECON
 
DATE BOARDED
20070410
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19690606
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.