RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070010870 


	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. John N. Sloane

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas Ray

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 (UD), 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 had two enlistments; the first one, fully  honorable, and the second, an UD, characterized as UOTHC.  He went to Vietnam and served 18 months and he had problems when he returned from Vietnam.  He felt that if counseling was available, he could have been able to get his act together and continue his military service honorably.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 6 August 1964 and 2 July 1968) 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 23 May 1962.  He successfully completed basic combat training at Fort Knox, Kentucky, and attended advanced individual training at Fort Gordon, Georgia, for training in military occupational specialty (MOS) 112, Heavy Weapons Infantryman. 

3.  The applicant was promoted to pay grade E-4 on 20 March 1964.  He continued to serve until he was honorably discharged on 6 August 1964, for the purpose of immediate reenlistment, while serving in Hawaii.  He reenlisted on 7 August 1964.  He served in Hawaii from 25 September 1963 to 19 August 1965 and in Vietnam from 22 January 1966 to 12 July 1967.


4.  Between 1 September 1964 to 7 March 1968, he received nonjudicial punishment on seven occasions under Article 15, UCMJ, for failure to go to his appointed place of duty, for being absent from his appointed place of duty on two occasions, for dereliction in the performance of his duties, for violation of a lawful regulation, for being AWOL (absent without leave) on three occasions, for apprehension by military police, inside a village which was declared an off-limits area to members of his command, and for breaking restriction.  His punishments consisted of a reduction to pay grade E-3, E-2, and E-1, forfeitures of pay, and restriction and extra duties.

5.  On 29 June 1966, the applicant was convicted by a special court-martial of being AWOL from 17 to 18 May 1966 and for wrongful appropriation of government property.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 4 months.

6.  On 18 April 1967, the applicant was convicted by a special court-martial of being AWOL from 1 to 2 April 1967 and for wrongful appropriation of a government property.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant submitted a copy of his DD Form 214 which shows that on 2 July 1968, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature with civil or military authorities.  He was furnished an undesirable discharge.  He had a total of 5 years, 8 months, and 17 days of creditable service and 173 days of time lost due to AWOL and confinement. 

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

9.  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.




10.  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.  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.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  The Board noted that the applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service and the Board presumed Government regularity in the discharge process.  

4.  The evidence shows that his first enlistment was honorable with no misconduct; however, during his second enlistment he had a pattern of shirking by having gone AWOL on five occasions and received two courts-martial convictions.  It is apparent that these violations contributed to and served as a basis for his discharge under the provisions of Army Regulation 635-212, for unfitness.  

5.  The applicant stated that he served in Vietnam for 18 months and had problems when he returned from Vietnam.  The evidence confirms that he served in Vietnam during his second enlistment and had problems in Vietnam by virtue of his misconduct.  

6.  The applicant also stated that had counseling been available he would have gotten his act together to continue to serve his military service honorably.  Since his facts and circumstances are unavailable for review; there is no evidence to show that counseling was not available and he has failed to provide evidence to show he was not counseled during his second enlistment regarding his misconduct which led to an undesirable discharge.

7.  The evidence of record clearly shows that it has been 39 years, or more, since he received his UD, characterized as UOTHC.  However, there is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted to or applied for an upgrade of his discharge to the ADRB within that board's 15-year statute of limitations.

8.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD, characterized as UOTHC, to a general discharge.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___S____  __T__ __  __TR____  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.




_____John N. Sloane_____
          CHAIRPERSON




INDEX

CASE ID
AR20070010870
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071218
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19680702
DISCHARGE AUTHORITY
AR  635-212
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.