RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070014122 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 an upgrade of his discharge. 

2.  The applicant states that after receiving a general discharge in 1964, he reentered the Army in 1965 and was a good Soldier.  He received a Letter of proficiency from his commanding officer and was promoted ahead of most of his peers.  He had a perfect record until he returned from the Republic of Vietnam when, upon his return and unknowing to him, he bought a stolen car and was subsequently charged with theft.  In order to prove his innocence and avoid going to prison, he was forced to go in an absent without leave (AWOL) status on three occasions, during which he also turned to drugs.  He further states that he was confused and was falsely coerced into signing his discharge papers without fully understanding the consequences of his discharge at the time.   

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1 March 1968.

	b.  Headquarters and Headquarters Detachment, 1st Aviation Battalion, Memorandum, dated 14 September 1966, Recommendation for Promotion.

c.  U.S. District Court, Eastern District of Kentucky, Dismissal of Charges Order, dated 31 October 1967.

	d.  DA Form 20 (Enlisted Qualification Record).

e.  Headquarters and Headquarters Detachment, 1st Aviation Battalion, Unit Order Number 10, dated 21 February 1966, promotion to specialist four (SP4)/E-4.

	f.  Certificate of Proficiency, U.S. Army Training Center, Fort Knox, Kentucky, dated 24 July 1965.

g.  Headquarters, 1st Infantry Division, Special Orders Number 227, dated 25 August 1966, award of the Combat Infantryman Badge.  




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 records show that he served two periods of enlistments using two different last names, under the same service number.  

3.  The applicant's records show that he was initially inducted into the Army of the United States under the last name “Br***ey” on 13 February 1962.  After completion of 2 months and 8 days of military service, he was honorably discharged on 20 April 1962 for the purpose of enlistment in the Regular Army.  He enlisted on 21 April 1962, also under the last name “Br***ey” for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).

4.  On 26 October 1962, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 19 July through 21 July 1962; and one specification of being AWOL during the period on or about 11 August through 9 October 1962.  

5.  On 1 November 1962, the applicant pled guilty at a Summary Court-Martial for two specifications of  being AWOL during the period on or about 19 July through on or about 21 July 1962; and during the period on or about 11 August 1962 through on or about 9 October 1962.  The Court sentenced him to confinement at hard labor for one month, forfeiture of $55.00 pay per month for one month, and reduction to the grade of private/E-1. 




6.  On 7 March 1963, the applicant underwent a psychiatric evaluation at Fort Knox, Kentucky due to consideration for elimination from the Army under the provisions of Army Regulation 635-209 (Personnel Separations).  The military medical officer remarked on the applicant’s various periods of AWOL and stated that the applicant was immature and impulsive and displayed no motivation to return to duty.  The medical officer further recommended separation under appropriate administrative regulation.  

7.  On 12 March 1963, the applicant pled guilty at a Special Court-Martial for two specifications of being AWOL during the period on or about 14 January 1963 through on or about 13 February 1963 and on or about 3 March 1963; and one specification of violating the conditions of his parole on or about 3 March 1963. The Court sentenced him to confinement at hard labor for six months, forfeiture of $55.00 pay per six month for one month, and reduction to the grade of private/E-1. 

8.  On 14 March 1963, the applicant’s immediate commander submitted a report of the applicant’s unsuitability in the form of a memorandum to the separation authority, recommending the applicant’s separation in accordance with Army Regulation 635-209 (Personnel Separation) for his phlegmatic attitude towards further retention in the service.  The immediate commander remarked on the applicant’s periods of AWOL and that the applicant had clearly demonstrated by his acts of misconduct not to be of the caliber of retention in military service.  He further recommended general discharge.

9.  On 14 March 1963, the applicant acknowledged notification of his pending separation action.  He further indicated he understood that if his separation was other than honorable, he could be deprived of many rights and benefits as a veteran under Federal and State laws and that he could encounter prejudice in civilian life.

10.  On 23 March 1963, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed the applicant be furnished a General Discharge Certificate.  Accordingly, he was discharged on 1 April 1963.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged with an under honorable conditions characterization of service.  This form further confirms that he completed a total of 5 months and 14 days of creditable active military service and had 179 days of lost time.



11.  The applicant’s records show that he reentered the Regular Army under the last name “Bu**s” on 17 May 1965 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded MOS 71B (Personnel Specialist).  The highest rank he attained during this period of enlistment was SP4/E-4.  The applicant’s records further show that he served in the Republic of Vietnam during the period 14 December 1965 to 13 December 1966.

12.  The applicant's records further show that he was awarded the National Defense Service Medal, the Vietnam Campaign Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Letter of Proficiency, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.

13.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 30 March 1967 for being AWOL during the period on or about 14 March 1967 through on or about 30 March 1967.  His punishment consisted of reduction to private first class (PFC)/E-3.

14.  On 3 November 1967, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 3 April 1967 through on or about 13 June 1967.  The Court sentenced him to forfeiture of $67 pay per month for 3 months and reduction to the grade of private/E-2.  

15.  On 7 February 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 8 December 1967 through on or about 20 January 1968.  The Court sentenced him to confinement at hard labor for 6 months and forfeiture of $90 pay per month for 6 months.  

16.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the DD Form 214 he was issued at the time of his discharge confirms he was discharged on 1 March 1968 for unfitness, under the provisions of Army Regulation 635-212 and his characterization of service was under conditions other than honorable.  This form further confirms that he completed 2 years, 3 months, and 21 days of creditable active military service and had 174 days of lost time due to AWOL. 

17.  On 21 November 1968, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.



18.  Army Regulation 635-212, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further service by reason 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.

19.  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.

20.  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 contends that his discharge should be upgraded.

2.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ.  Additionally, his records show two instances of a Special Court-Martial.  

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  It is presumed in this case that the applicant's discharge was in accordance with applicable regulation and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
4.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

5.  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 this requirement.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __rml___  __qas___  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 D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.