RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009479 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Gerald 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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was told his discharge would be automatically upgraded within 6 months after his discharge, so he assumed it was completed.

3.  The applicant provides a copy of VA Form 21-4138 (Department of Veterans Affairs (DVA), Statement in Support of Claim) and two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 26 October 1970 and 11 October 1973.

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 service records show that he entered active duty  
29 May 1969.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 64B (Heavy Vehicle Driver).  The DD Form 214 he was issued for the period ending 26 October 1970 shows that after he served 1 year, 4 months, and 28 days of Net Service This Period he had reenlisted.  On 27 October 1970, the applicant reenlisted for 3 years.

3.  He served with Headquarters and Headquarters Company (HHC),  
19th Engineer Battalion, 18th Military Police (MP) Brigade, and 630th MP Company in the Republic of Vietnam during the period 14 August 1970 to  
4 August 1971.

4.  The applicant's records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of Uniform Code of Military Justice (UCMJ) on five occasions between 5 July 1971 and 11 May 1973 for being disrespectful in language and deportment toward a senior noncommissioned officer; failing to go to his appointed place of duty, guard mount; disobeying a lawful order issued by his commanding officer by failing to obey the Vehicle Dispatch and Control procedures by dispatching a vehicle to which he operated, a .5 ton Jeep, without an authorized dispatch; and absent without leave (AWOL) during the periods  
15-16 January and 2-5 April 1973.

5.  On 27 August 1973, the applicant was convicted by a special court-martial of four specifications of AWOL during the periods 21-22 May 1973; 31 May to  
4 June 1973; and 5-10 June and 10-14 June 1973; and one specification for failure to repair (to be at his appointed place of duty).  His punishment was confinement for five months and forfeiture of $200.00 per month for five months.  No previous convictions were considered.

6.  On 2 October 1973, the applicant's commander recommended that the applicant be discharged under the provision of Army Regulation  
635-200 (Personnel Separation), paragraph 13-5 for unfitness due to frequent incidents of a discreditable nature.

7.  The applicant was counseled and advised of his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf and his right to be represented by counsel at a hearing.  The commander also explained the applicant's rights in conjunction with his recommendation and the effect of waiving those rights.

8.  The applicant acknowledged that he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the DVA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

9.  On 5 October 1973, the separation authority approved the applicant's commander's recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  On 11 October 1973, the applicant was discharged.  The DD Form 214 he was issued for the period ending 11 October 1973 shows he completed a total of 2 years, 7 months, and 1 day of active service and he had accrued 23 days of time lost.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

11.  Army Regulation 635-200 (Personnel Separations), applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a (1) provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.

14.  In the statement that the applicant submitted, it states, in effect, his first enlistment was served honorably as a driver for the commander of the  
18th Engineer Battalion in the Republic of Vietnam.  He changed his MOS and became a MP serving with the 630th MP Company.  After returning to the United States he was assigned to the 532nd MP Company where he served very well until 1973 when his company was assigned to the stockade.  He did not like the duty so he asked several times to be transferred but his request was denied.  He further states, in effect, a lot of MPs to include him were accused of smoking pot (marijuana) by a reservist from the State of New York.  As a result, most of the MPs were given an Article 15 except him.

15.  He continues to state, in effect, that from that point on his company started treating him like "s_ _ t" and he wasn't allowed to perform his MP duties that he was trained for.  He wanted to reenlist to purchase a new car but he was unable to do so because his commander would not allow him to reenlist.  He lost it and was mentally defeated, started drinking heavily, and he went AWOL.  He did not care anymore after he received a court-martial and was placed in solitary confinement for 90 days.  While waiting in solitary confinement he was told by drill sergeants that if he did not want to return to repeat "Boot Camp" he could take a general discharge but he would have to buy some time and behave.  He could not stand the waiting because it was the same crap he went through at Fort Dix, New Jersey.

16.  His commander called him in to sign his general discharge, which he signed, and he thought that was the end of it.  A week later he was called back to the office and was told by a captain he would not allow him to get out easy because he was a "Good Solger."  He would have to go through "Boot Camp" and start all over or he would receive an undesirable discharge.  He exploded, lost control, went crazy with hate and anger, so he told the captain that he did not care what the "f_ _ _ " he gave him, he just want out of this bull "s_ _t."  He thinks the stress of being in Vietnam, being treated unfairly at Fort Dix, New Jersey along with the destruction of his pride had caused him to loose it.  After 30 years he still believes he was wronged and unappreciated.  His 3 years of good service and serving in Vietnam should be enough for an upgrade to an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His numerous acts of misconduct render his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

3.  The applicant's discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an undesirable discharge for unfitness.  Therefore, he is not entitled to an honorable or a general discharge.
5.  The applicant states that he was led to believe his discharge would be upgraded after 6 months is noted.  However, the Army does not have or ever had a policy for an automatic upgrade.

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

__WP ___  __GP ___  __JH ___  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.




_____William Powers_______
          CHAIRPERSON




INDEX

CASE ID
AR20070009479
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.