RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012417 


	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:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 a general or an honorable discharge.

2.  The applicant states, in effect, he was discharged because of extreme drug usage while serving in the Republic of Vietnam.  He states that before using drugs to overcome the stress of war in the Republic of Vietnam, he had served his country honorably.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 on 16 June 1967.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 12B (Combat Engineer).  He served until he was honorably discharged on 19 August 1968 after serving 1 year, 2 months, and 4 days of active service.  

3.  He immediately reenlisted in the Regular Army on 20 August 1968 for 3 years. He served 1 year, 8 months, and 5 days in the Republic of Vietnam.  His military service record shows that he received an undesirable discharge.

4.  The applicant's discharge packet was not included in his records.  However, his DD Form 214 shows that he received an undesirable discharge on  
1 November 1973, with Separation Program Designator (SPD) code of  

284, which is assigned to individuals who are convicted or adjudged a juvenile offender by civil court.  He had completed a total of 3 years, 3 months, and  
14 days of active service and accrued 688 days of time lost.

5.  On 12 January 1984, the applicant enlisted in the Regular Army.  However, he was discharged on 1 June 1984 under the provision of Army Regulation 635-200, Chapter 7, Section V, for fraudulent entry for concealing an extensive record of civilian offenses, of which many occurred during his unreported prior service that are nonwaiverable offenses.  He had completed 4 months and 20 days of Net Active Service This Period.

6.  Army Regulation 635-206 (Personnel Separations), in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (conviction by civil court, and absence without leave or desertion).  Paragraph  
37 of the regulation provided, in pertinent part, that the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the United States or its territorial possessions.  Specifically, the regulation provided for elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  Separation with an undesirable discharge was normally considered appropriate.

7.  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 (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.

8.  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 applicant requested that his undesirable discharge be upgraded to a general or an honorable discharge.

2.  The evidence shows that the type of discharge directed and the reasons for separation were appropriate considering his civil court conviction and 688 days of lost time. 

3.  The applicant stated that he used drugs to overcome the stress of war in the Republic of Vietnam and he had served honorably prior to the war.  However, his statement is insufficiently mitigating to upgrade his discharge.

4.  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; therefore, he is not entitled to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LCB__  __PMS__  __SLP ___  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.




_____Shirley L. Powell____
          CHAIRPERSON



INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.