RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060017792 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Margaret Patterson

Chairperson

Mr. Ronald Gant

Member

Mr. Rowland Heflin

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 be upgraded to honorable. 

2.  The applicant states, in effect, that he was very young and stupid and that he was caught with marijuana.  He contends that he was told he was discharged for being unfit for military service, that he did not receive any counseling or help, and that he was just sent home.  He also contends that he has been a very good person since his discharge, that he has maintained employment, raised a family, and that he has stayed out of trouble.  He further states that he is remorseful and has paid the price for his mistake.  He points out that the mistake was made when he reenlisted in Berlin and requested to go to Vietnam to an infantry unit but was sent to a support unit where there were a lot of drugs.  He contends that when he left Vietnam he provided the commanding officer with information pertaining to Vietnamese drug distribution.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 January 1971.  The application submitted in this case is dated 
29 December 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 8 September 1951.  He enlisted on 3 March 1969 for a period of 3 years.  He successfully completed basic combat training and One Station Unit Training in military occupational specialty 70A10 (clerk).  On 
23 November 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 24 November 1969 for a period of 4 years.  He arrived in Vietnam on 16 April 1970.  

4.  On 28 August 1970, nonjudicial punishment was imposed against the applicant for sleeping on his post as a sentinel in Vietnam.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.
5.  On 18 November 1970, nonjudicial punishment was imposed against the applicant for leaving his appointed place of duty without authority and sleeping on his post as a sentinel in Vietnam.  His punishment consisted of a reduction to 
E-3, a forfeiture of pay, restriction, and extra duty.

6.  On 1 December 1970, nonjudicial punishment was imposed against the applicant for three specifications of failure to repair and disobeying a lawful command.  His punishment consisted of a reduction to E-2 and restriction.

7.  On 8 December 1970, the applicant underwent a psychiatric evaluation and was diagnosed with an immature personality.  The psychiatrist found that the applicant’s condition and the problems presented by the applicant were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military. 

8.  On 21 December 1970, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unsuitability.  

9.  On 27 December 1970, the applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

10.  On 15 January 1971, a bar to reenlistment was imposed against the applicant. 

11.  On 18 January 1971, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

12.  The applicant was transferred to the United States on 26 January 1972.

13.  Accordingly, the applicant was discharged on 26 January 1972 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability (character and behavior disorders).  He had served a total of 1 year, 10 months, and 24 days of creditable service.  

14.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

15.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general or honorable discharge was considered appropriate.  

16.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed basic training and One Station Unit Training.  He also completed almost 18 months of service prior to his first disciplinary action. 

2.  The applicant’s contention that he did not receive any counseling or help was noted.  However, evidence of record shows that he consulted with counsel on 
27 December 1970 prior to waiving his rights.  Also, medical evidence of record shows the psychiatrist found that the applicant’s condition and problems were not amenable to treatment. 

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

4.  Since the applicant’s record of service included three nonjudicial punishments, 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.

5.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

6.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 
7.  Records show the applicant should have discovered the alleged injustice now under consideration on 26 January 1971; therefore, the time for the applicant to file a request for correction of any injustice expired on 25 January 1974.  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

MP____  _RG____  ___RH___  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.


___Margaret Patterson_
          CHAIRPERSON




INDEX

CASE ID
AR200600177j92
SUFFIX

RECON

DATE BOARDED
20070614
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19720126
DISCHARGE AUTHORITY
AR 635-212  
DISCHARGE REASON
Unsuitability
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.