RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070009286 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome L. Pionk

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 to general.   

2.  The applicant states that he wants his discharge upgraded so that he can receive the awards that the earned in the Republic of Vietnam.

3.  The applicant provides copies of his discharge orders, Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), letter authorizing the wear of Aviation Gunner Wings, citation for award of the Air Medal, various photographs, and a current map of Vietnam. 

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.  On 17 September 1962, the applicant enlisted in the United States Army National Guard.  He was ordered to active duty for training and served from 
11 October 1962 to 10 April 1963.  He completed his initial training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  He was released from active duty and returned to State control as a member of the Army National Guard of Oregon.

3.  On 18 July 1963, the applicant enlisted in the Regular Army for 3 years as a light weapons infantryman.  

4.  On 29 August 1963, the applicant was assigned for duty with Company C, 
1st Battalion, 14th Infantry Regiment, in Hawaii.   During the period from 
1 December 1964 to 19 May 1965, the applicant was on a temporary duty assignment with the 117th Aviation Company, in the Republic of Vietnam.  He returned to his permanent unit on 20 May 1965.
5.  On 16 November 1965, the applicant was convicted by a special court-martial of AWOL (absent without leave) during the period from 3 July to 11 October 1965.  His sentence consisted of confinement at hard labor for 6 months, a forfeiture of $83.00 pay per month for 3 months, and reduction to private, pay grade E1.

6.  On 24 August 1966, the applicant was convicted by a special court-martial of AWOL during the period from 14 May to 6 August 1966.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of $86.00 pay per month for 6 months.

7.  Records show that the applicant went AWOL again from on or about 
6 February to on or about 16 April 1967.

8.  On 5 May 1967, the applicant’s commander recommended that the applicant be separated from the Army due to unfitness, under the provisions of Army Regulation 635-212.  The commander stated that the applicant had 234 days of AWOL.  He received nonjudicial punishment on 18 January 1967 for AWOL and was court-martialed three times, the last time being on 24 April 1967 for AWOL.  He further stated that the applicant had a total of 396 days bad time.  The commander recommended issuance of an Undesirable Discharge Certificate.

9.  On 23 May 1967, the applicant was examined by a psychiatrist and was found not to have any psychiatric disease at the time.  The applicant's mental status was found to be within normal limits and it was determined that he knew the nature and quality of his acts and was mentally responsible.  

10.  On 1 June 1967, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.  He indicated that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect substantial prejudice in civilian life.

11.  On 12 June 1967, the appropriate authority approved the recommendation for discharge, and directed that he be issued an Undesirable Discharge Certificate.


12.  Accordingly, on 3 July 1967 he was discharged with an undesirable discharge, characterized as under other than honorable conditions.  He had completed 3 years, 6 months and 1 day of creditable active service and had 468 days of lost time due to AWOL and confinement.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that a medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable.

DISCUSSION AND CONCLUSIONS:

1.  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.  The type of discharge and the reasons therefore were appropriate considering all of the facts of the case.

2.   The evidence clearly shows that the applicant’s record of service, subsequent to any awards he may have earned, was not honorable.  Therefore, correcting his records to award, or to cause presentation of any awards, would not be appropriate. 

3.  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 the aforementioned requirement.

4.  In view of the above, the applicant’s request should not be granted.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RTD __  __JLP ___  __JRM _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009286
SUFFIX

RECON
 
DATE BOARDED
20071220 
TYPE OF DISCHARGE
UD 
DATE OF DISCHARGE
19670703 
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.