RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007 
	DOCKET NUMBER:  AR20070004066 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable 

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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that he served his country in the Republic of Vietnam and has had no trouble in civilian life.

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record is incomplete.  However, the available records show that he enlisted in the Regular Army on 25 May 1965.  He completed basic combat training and was trained in, awarded and served in military occupational specialty (MOS) 62E (Construction Machine Operator) and the highest rank he attained while serving on active duty was private/pay grade E-2.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that during his active duty tenure, he earned the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, one Overseas Bar.

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  The applicant's record reveals a disciplinary history that includes Special Court-Martial Order Number 5, dated 18 October 1966, which shows the applicant pled guilty on 7 October 1966 to striking his superior non-commissioned officer by hitting him on the chest with his hand on or about 5 September 1966, and to being disrespectful in language towards his superior non-commissioned officer.  The applicant was sentenced to confinement at hard labor for six months, suspended for six months, reduction to the rank of private/pay grade E-1, and forfeiture of $50.00 per month for six months.  The convening authority later suspended the sentence to confinement.

6.  Special Court-Martial Order Number 15, dated 10 April 1967 vacated the suspension of the sentence to confinement at hard labor for six months.  The unexecuted portion of the sentence was duly executed.  The applicant was then confined in the Post Stockade at Fort Ord, California.

7.  On 27 November 1967, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) during the period 24 November 1967 through 27 November 1967.  His punishment consisted of forfeiture of $30.00 per month for one month.

8.  Summary Court-Martial Number 8, dated 19 April 1967 shows the applicant was found guilty of being AWOL during the period 20 February 1967 through 22 March 1967.  The applicant was sentenced to restriction and to hard labor without confinement for 45 days.  

9.  On 14 June 1967, the applicant was seen for a psychiatric evaluation by a clinical psychology officer at U.S. Army Hospital, Fort Ord, California.  The evaluation shows that the applicant was a well developed, well nourished, young white male who appeared cooperative and of average intelligence.  The evaluation also shows that there was no evidence of neurosis, psychosis, or of organic brain disease.  The medical staff psychiatrist's diagnosis shows that the applicant had no psychiatric illness.  The evaluation also revealed that the applicant had no disqualifying mental disability warranting his separation through medical channels for psychiatric reasons.  The evaluation shows that the applicant was so far free from mental defect, disease or derangement as to be able to both distinguish right from wrong, adhere to the right, understanding and to participate in administrative procedures deemed necessary by command.  The applicant's records also show that he was medically cleared for separation.

10.  Special Court-Martial Order Number 48, dated 6 July 1967 shows the unexecuted portion of the sentence to confinement a hard labor for six months, adjudged on 7 October 1966, promulgated and suspended in Special Court-Martial Order Number 5, dated 18 October 1966, and subsequently vacated by Special Court-Martial Order Number 15, dated 10 April 1967, was suspended for two months, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence would be remitted without further action.


11.  Special Court-Martial Order Number 9, dated 23 February 1968 shows the applicant pled guilty to being AWOL during the periods 5 December 1967 through 6 December 1967, 7 December 1967 through 8 December 1967, and 11 December 1967 through 18 January 1968.  The applicant was sentenced to confinement at hard labor for six months, reduction to the rank of private/pay grade E-1.  The sentence was adjudged on 14 February 1968.  

12.  Special Court-Martial Order Number 23, dated 21 March 1968, shows that the unexecuted portion of the sentence to confinement at hard labor for six months, adjudged on 14 February 1968 in Special Court-Martial Order Number 9, dated 23 February 1968, was suspended until 14 August 1968, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement at hard labor would be remitted without further action.

13.  Special Court-Martial Order Number 116, dated 22 November 1968, shows that Special Court-Martial Order Number 9, dated 23 February 1968, was vacated, and the unexecuted portion of the sentence to confinement at hard labor for six months was duly executed.

14.  Special Court-Martial Order Number 48, dated 14 January 1969, shows the applicant pled guilty to being AWOL during the period 17 April 1968 through 21 November 1968.  The applicant was sentenced to confinement at hard labor for six months and forfeiture of $97.00 per month for six months.  The sentence was adjudged on 19 December 1968.  

15.  On 23 January 1969, the applicant was referred to the Mental Hygiene Consultation Division, U. S. Army Hospital, Fort Ord, California for second psychiatric evaluation.  The evaluation shows that the applicant was referred for evaluation prior to elimination under Army Regulation 635-212 (Personnel Separations) for unsuitability.  The medical staff psychiatrist's diagnosis showed that the applicant's personality was immature, manifested by difficulty dealing with structured situations; difficulty dealing with authority; and difficulty delaying gratification.  The evaluation shows that the applicant's condition existed prior to entry in the service and not in the line of duty.  The evaluation also revealed that the applicant had no disqualifying mental disability warranting his separation through medical channels for psychiatric reasons.  

16.  Special Court-Martial Order Number 820, dated 14 April 1969 shows the applicant pled guilty to violating the conditions of his parole by leaving the Parolee Barracks, without authorization on 20 March 1969.  The applicant 
was sentence to confinement at hard labor for four months, and forfeiture of $97.00 per month for four months.  The sentence was adjudged on 
14 April 1969.  
17.  On 22 May 1969, the unit commander advised the applicant that he was recommending he be discharged under the provisions of Army Regulation 
635-212 (Personnel Separations), for unfitness, as evidenced by an established pattern of complete disregard for military authority and his defective attitude warranting discharge from the military service for unfitness.

18.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  The applicant elected not to provide any statements on his behalf.

19.  On 26 May 1969, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate.  On 3 June 1969, the applicant was discharged on temporary records and Soldiers affidavit.  The applicant's records show he was AWOL and/or in confinement during the period 5 December 1967 through 5 December 1967, 7 December 1967 through 7 December 1967, 11 December 1967 through 17 January 1968, 18 January 1968 through 20 March 1968, 17 April 1968 through 24 May 1968, 25 May 1968 through 20 November 1968 and 21 November 1968 through 2 June 1969.  

20.  The DD Form 214 issued to the applicant at the time of his discharge, confirms the applicant completed a total of 2 years, 7 months, and 11 days of creditable active military service and that he accrued a total of 140 days of time lost due to AWOL or confinement.  The applicant's service was characterized as under other than honorable conditions.  

21.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

22.  Army Regulation 635-212 (Personnel Separation), in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for a repeated pattern of misconduct. 

23.  Army Regulation 635-200 (Personal Separations), in effect in 1969, in pertinent part, shows that the issuance of an honorable discharge is conditional discharge is conditional upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned.  Whenever there is doubt, it is to be resolved in favor of the individual.
24.  Paragraph 3-7b of Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge, characterized as under other than honorable conditions discharge be upgraded because of the number of years since his separation and that he has had no troubled in civilian life for the last 30 years.

2.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.  

3.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

4.  The applicant's record of service included non-judicial punishment for being AWOL, a Summary Court-Martial conviction for 28 days of AWOL, three Special Court-Martial convictions for hitting a super non-commissioned officer on the chest with his hand and being disrespectful in language, being AWOL for 40 days, and violating the conditions of his parole by leaving the Parolee Barracks.  

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.

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






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS____  _RSV___  _SWF___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





_____Linda D. Simmons___
          CHAIRPERSON






INDEX

CASE ID
AR20070004066
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
 
DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR 635-212 
DISCHARGE REASON
undesirable
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.