RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008 
	DOCKET NUMBER:  AR20070012191 


	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. Hubert O. Fry

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 general discharge (GD), upgraded by the Special Discharge Review Program (SDRP), be changed to an honorable discharge.

2.  The applicant states, in effect, that he was never AWOL (absent without leave), especially in the jungles of Vietnam.  He was a Tunnel Rat, armed only with a flashlight and knife.  He would go into these intricate tunnels and sometimes surface in unknown areas.  Many lives depended on him and he protected them.  His DD Form 214 (Report of Separation from Active Duty) states an AWOL period of 22 August 1968 to 25 November 1968, whereas he was a casualty on 5 November 1968.  

3.  The applicant provides a copy of his DD Form 214 and a copy of a VA Form 21-4138 (Statement in Support of Claim) 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 3 April 1967.  He successfully completed basic combat training at Fort Ord, California, and advanced individual training at Fort Gordon, Georgia.  On completion of advanced training, he was awarded military occupational specialty (MOS), 11B, Light Weapons Infantryman.  He was advanced to pay grade E-4 on 3 May 1968.

3.  The applicant served in Vietnam from 28 November 1967 to 20 May 1969. 



4.  On 10 June 1968, the applicant was convicted by a special court-martial of being AWOL from 15 May 1968 to 3 June 1968.  His sentence consisted of confinement at hard labor for 6 months (suspended), a forfeiture of pay for 6 months, and reduction to pay grade E-1.

5.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows an additional AWOL period from 28 June 1968 to 7 July 1968.

6.  The Vietnam Casualty List shows the applicant is listed as a casualty on 5 November 1968.  He was awarded the Purple Heart.

7.  On 7 January 1969, the applicant was convicted by a special court-martial of being AWOL from 22 August 1968 to 26 November 1968 and from 29 November 1968 to 16 December 1968.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

8.  On 20 February 1969, the applicant's commander recommended that he be discharged from the service under the provisions of Army Regulation 635-212, for unsuitability.  He based his recommendation on the applicant's two convictions by court-martial and repeated AWOLs.  He was advised of his options.

9.  The separation authority approved the recommendation for the applicant's discharge and directed that he be furnished an undesirable discharge.  The applicant was discharged on 31 March 1969, in the pay grade E-1.  He had a total of 1 year, 5 months, and 4 days of total active service and had 204 days of time lost due to AWOL and confinement.  

10.  On 21 April 1977, the applicant applied to the Army Discharge Review Board for an upgrade of his UD.  His UD was upgraded to general discharge, under honorable conditions, under the DOD SDRP, on 5 July 1977.  A new separation document was prepared and forwarded to the applicant without his signature.

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

12.  Army Regulation 635-200, 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, 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.  The SDRP, often referred to as the "Carter Program," was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria to include various aspects of service in Vietnam.  Reasons for granting an upgrade under secondary criteria include age, aptitude, education level, alcohol/drug problem, record of citizenship, etc.

14.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a pattern of shirking by being AWOL more than once and received two courts-martial which contributed to his discharge under the provisions of Army Regulation 635-212, for unsuitability- character and behavior disorders.  He was issued an undesirable discharge, characterized as UOTHC.

2.  The applicant's UD was upgraded to general under the SDRP and a new separation document was prepared and forwarded without his signature. 

3.  The applicant alleges that he was never AWOL, especially in the jungles of Vietnam, and his DD Form 214 states that he was AWOL during the period 22 August 1968 to 25 November 1968.  

4.  The evidence shows that he was court-martialed for being AWOL from 22 August 1968 to 26 November 1968 and during the period 29 November 1968 to 16 December 1968.  The Vietnam Casualty List shows he was listed as a casualty on 5 November 1968 and he was awarded the Purple Heart on 22 November 2005, 36 years later, for wounds received in action on 5 November 1968.  

5.  It is impossible for the applicant to be AWOL and wounded on the same date while serving in Vietnam.  However, his DA Form 20 and DA Form 20B (Insert Sheet to DA Form 20 [Record of Court-Martial Conviction]) shows that he was AWOL on 5 November 1968, the date for wounds received in action.  The applicant is advised that the DA Form 20 and his DA Form 20B is no longer maintained after a Soldier’s separation and therefore no changes are made to these forms after a Soldier has been separated.  

6.  The evidence shows that the applicant's is now requesting, in effect, that his general discharge be affirmed and upgraded, in effect, to honorable to be commensurate with circumstances surrounding the justifications for his separation.

7.  In view of the circumstances in this case, the applicant is not entitled to have his upgraded general discharge affirmed or upgraded to honorable.  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

___HF___  ___RCH_  ___J____  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.




_____Hubert O. Fry________
          CHAIRPERSON




INDEX

CASE ID
AR20070012191
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080117
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19690331
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.