RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009274 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Gerald J. Purcell

Member

Mr. John Heck

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, 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 informed by a captain at Fort Meade, Maryland, that in 6 months his DD Form 212 (sic DD Form 214 [Armed Forces of the United States Report of Transfer or Discharge]) would automatically be upgraded to a general discharge, under honorable conditions, due to his service in Vietnam.  His Purple Heart attests to the handicaps he suffered via Vietnam.  He served as best he could until he could not handle the racism he experienced.  He never got justice in the Army.

3.  The applicant provides no additional documentation in support of his request.

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 record shows he enlisted in the Regular Army on 16 May 1967.  He successfully completed basic combat training at Fort Bragg, North Carolina, and attended advanced individual training at Fort Jackson, South Carolina, for training in military occupational specialty (MOS) 11B, Light Weapons Infantryman.  

3.  On 18 September 1967, the applicant was punished under Article 15, UCMJ, for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay and 14 days restriction and extra duty.

4.  The applicant was promoted to pay grade E-3 on 1 November 1967.  

5.  The applicant served in Vietnam from 29 October 1967 to 12 December 1968.

6.  On 14 December 1967, the applicant was punished under Article 15, UCMJ, for sleeping at his post while being posted as a sentinel,  His punishment consisted of a forfeiture of pay and 14 days extra duty.

7.  The applicant was awarded the Purple Heart for a wound received in connection with military operations against a hostile force on 2 February 1968.  This award is not shown on his DD Form 214.

8.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL (absent without leave) from 10 January 1968 to 18 March 1968 (70 days) and from 20 March 1968 to 30 March 1968 (11 days).

9.  On 2 September 1968, he was convicted, contrary to his plea, by a general court-martial, while serving in Vietnam, of being AWOL (absent without leave) from 28 April 1968 to 4 June 1968.  His sentence consisted of a forfeiture of pay and all allowances, confinement at hard labor for 1 year, reduction to pay grade E-1, and to be discharged with a bad conduct discharge (BCD).  His sentence was approved on 17 January 1969.

10.  On 22 January 1970, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf.   

11.  The applicant's documentation showing approval of his request for discharge is unavailable for review; however, his DD Form 214 shows that he was discharged on 6 February 1970 and was furnished an undesirable discharge, characterized as UOTHC, in pay grade E-1.  He had a total of 2 years and 29 days of net active service and 232 days of time lost due to AWOL and confinement.  The remarks section of his DD Form 214 indicates that he was separated on temporary records.

12.  On 28 September 1978, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.



13.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.  

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a pattern of misconduct. He went AWOL on three occasions and received one general court-martial and two Article 15s for his misconduct.  He accumulated a total of 232 days of lost time due to AWOL and confinement.  

2.  The evidence shows that the applicant voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, and waived his rights.  The document approving his discharge by the appropriate authorities is unavailable for review.  He was separated on temporary records.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

4.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

5.  The applicant alleges that a captain at Fort Meade told him that within 6 months, his undesirable discharge characterized as UOTHC, would automatically be upgraded to general under honorable conditions, due to his service in Vietnam. However, the Army has never had a program by which discharges are automatically upgraded because of service in Vietnam. 
6.  The applicant contends that the Purple Heart attests to the handicaps he suffered as a result of his service in Vietnam; however he has provided no evidence to show that receiving an award of the Purple Heart became a handicap while serving on active duty.

7.  The applicant contends that he served the best he could until he could not handle the racism he experienced and never received justice in the Army.
However, there is no evidence in the available records to show that he endured racism or prejudice during his time of service.   

8.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge, characterized as UOTHC, to general, under honorable conditions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

9.  The evidence of record shows that the applicant was awarded the Purple Heart for a wound received in connection with military operation against a hostile force on 2 February 1968; however, this award was omitted from his DD Form 214.  Therefore, he is entitled to correction of his records to show the award of the Purple Heart.

10.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __GP ___  __JH____  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show award of the Purple Heart to the applicant and to add this award to his DD Form 214.




_____William D. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20070009274
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19700206
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.