RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060014014 


	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.


x

	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) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that while serving in the Republic of Vietnam (RVN), he became addicted to drugs.  He states that one week prior to his departure from the RVN, he got beat up and now suffers from a Post Traumatic Stress Disorder (PTSD).  He further states that he was a good Soldier before he became addicted to drugs, and that he is now clean and would like to have his discharge upgraded to an HD so that he may receive benefits.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 8 October 1971.  The application submitted in this case is dated 
24 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 enlisted into the Regular Army and entered active duty on 21 June 1968.  He was trained in, awarded, and served in military occupational specialty (MOS) 76Q (Special Purpose Equipment Specialist), and that specialist four (SP4) was the highest rank he attained while serving on active duty.  

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 31 December 1968 through 31 December 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the Army Depot at Long Binh, RVN.  

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that during his active duty tenure, he earned the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with 1960 Device, Marksman Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars.  His record documents no acts of valor or significant achievement.  

6.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that he accrued a total of 216 days of time lost due to four separate periods of AWOL totaling 
89 days and three periods of confinement totaling 127 days.  

7.  The applicant's disciplinary history includes his conviction by Special Court-Martial (SPCM) on two separate occasions, his conviction by Summary Court-Martial (SCM) on two separate occasions, and his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  

8.  On 19 December 1969, an SPCM convicted the applicant of three charges of violating three separate articles of the UCMJ.  Charge 1 was for violating 
Article 86 by failing to go to his appointed place of duty at the time prescribed on 23 November 1969; Charge II was for violating Article 90 by disobeying the lawful order of a superior commissioned officer on 21 November 1969; and Charge III was for violating Article 92 by disobeying a lawful order.  The resultant sentence was a forfeiture of $45.00 per month for 4 months and a reduction to private/E-2 (PV2), which was suspended for 4 months by the SPCM convening authority.  

9.  On 22 July 1970, an SCM found the applicant guilty of violating Article 86 of the UCMJ by failing to go to his appointed place of duty at the prescribed time on 
27 June 1970.  The resultant sentence was forfeiture of $118.00, reduction to private/E-1 (PV1), and 1 month restriction.  

10.  On 16 November 1970, an SPCM found the applicant guilty of two specifications of violating Article 86 of the UCMJ by being absent without leave (AWOL) from on or about 3 August 1970 until on or about 22 September 1970, and from on or about 6 October 1970 until on or about 18 October 1970.  The resultant sentence was confinement at hard labor for 3 months and a forfeiture of $100.00 per month for 3 months.  

11.  On 6 April 1971, the applicant accepted NJP for disobeying a lawful order. His punishment for this offense was a forfeiture of $20.00.

12.  On 28 May 1971, the applicant accepted NJP failure to report to his appointed place of duty at the prescribed time.  His punishment for this offense was a forfeiture of $25.00.

13.  On 10 August 1971, an SCM found the applicant guilty of two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 2 July 1971 until or about 7 July 1971 and from on or about 9 July 1971 until on or about 
30 July 1971.  The resultant sentence was a reduction to PV1, confinement at hard labor for 30 days, and a forfeiture of $125.00. 

14.  The applicant's Military Personnel Record Jacket (MPRJ) does not contain a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a separation document 
(DD Form 214) that shows he was separated on 8 October 1971, under the provisions of Army Regulation 635-212, by reason unfitness (involvement in frequent incidents of a discreditable nature with military authorities), and that he received an UD.  It also shows he had completed a total of 2 years, 8 months, and 12 days of creditable active military service and accrued 216 days of time lost due to AWOL and confinement.  

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

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An UD was normally considered appropriate for members separating under these provisions.  The separation authority could issue a general, under honorable conditions discharge (GD) or HD if it were warranted based on the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD so that he may receive benefits because he was a good Soldier prior to becoming addicted to drugs and is no longer using drugs was carefully considered.  However, while this factor is noteworthy, it is not sufficiently mitigating to support granting the requested relief.


2.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include properly constituted DD Form 214 that identifies the reason and characterization of his discharge.  Therefore, Government regularity in the discharge process is presumed.  Absent evidence to the contrary, it is concluded all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record reveals an extensive disciplinary history that clearly supported the applicant's separation processing and the UD he received.  His overall record of service clearly did not support a GD or HD at the time and it does not support an upgrade at this time.  The applicant's UD accurately reflects his overall record of undistinguished service and is appropriate based on his extensive record of misconduct.  

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 8 October 1971, the date of his separation from active duty.  Therefore, the time for him to file a request for correction of any error or injustice expired on 7 October 1974.  He failed to 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

__x __  __x__  __x __  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.




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          CHAIRPERSON


INDEX

CASE ID
AR20060014014
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/10
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1971/10/08
DISCHARGE AUTHORITY
AR635-212. . . . .  
DISCHARGE REASON
Unfitness
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.