RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070014345 


	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. James E. Anderholm 

Chairperson

Mr. William D. Powers

Member

Mr. Jerome L. Pionk

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) be upgraded. 

2.  The applicant states, in effect, that he was discharged as a result of conflict with his commander.  He adds that he was wounded and went to Yokohoma, Japan.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of his DA Form 20 (Enlisted Qualification Record) 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 was inducted on 21 February 1968.  He was trained in military occupational specialty (MOS) 72B (communications center specialist).  He was promoted to pay grade E-3 on 29 August 1968.  He served in Vietnam from 23 September to 17 November 1968.

3.  Item 38 (Record of Assignments), of his DA Form 20, shows that he was in a patient status effective 18 November 1968 and was assigned to the MHD (Medical Holding Detachment), 106th General Hospital [Yokohama, Japan] until 21 January 1969. 

4.  The evidence indicates the applicant was promoted to specialist four
(SP4/E-4); however, the date of his promotion is unknown.



5.  On 8 October 1969, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), while serving in the rank and pay grade of SP4/E-4, for failing to go to his appointed place of duty.  His punishment consisted of a reduction to pay grade E-3 (suspended), detention of $36.00, and 14 days extra duty.

6.  The applicant's record contains a copy of an FBI (Federal Bureau of Investigation) report, dated 13 November 1969, which shows that he was arrested by civilian authorities for smuggling heroin and marijuana.

7.  Item 44 (Time Lost), of his DA Form 20, shows that he was confined by civilian authorities from 31 October to 16 November 1969 (17 days).  

8.  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 1 May 1970, he was discharged in the pay grade of E-1, under the provisions of Army Regulation 635-206, for misconduct - due to a civil court conviction.  He was furnished an undesirable discharge.  He had a total of 1 year, 11 months, and 7 days of creditable service.  

9.  Item 11c (Reason and Authority), of the applicant's DD Form 214, shows the "SPN" (Separation Program Number) "284" was applied to his DD Form 214.  This SPN is applied to the DD Form 214 of those individuals who are discharged for misconduct–convicted or adjudged a juvenile offender by a civil court during current term of active duty. 

10.  Item 26 (Non-Pay Periods Time Lost), of his DD Form 214, shows that he was confined by civil authorities from 9 February to 1 May 1970 (82 days).  He had a total of 99 days of lost time due to confinement.

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

12.  Table 1, Enlisted Separation Program Designator Chart, of Army Regulation 680-3-2, in effect at that time, establishes the proper SPN codes to assign to soldiers separating from the Army.  This table confirms that the SPN of "284" is the appropriate code for individuals discharged for misconduct-convicted or adjudged a juvenile offender by a civil court during current term of active duty.

13.  The applicant's name does not appear on the Vietnam Casualty List for a wound received as a result of hostile action.  The applicant's medical records are unavailable for review and therefore the reasons for this medical reassignment from Vietnam are not known.

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.  

15.  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.

16.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army; however, the applicant's record contains a copy of the DD Form 214 he was issued on his separation.  This document lists the authority for his separation as Army Regulation 635-206, with an SPN of "284" which stands for misconduct-convicted or adjudged a juvenile offender by a civil court during current term of active duty.  

2.  In the absence of evidence to the contrary, Government regularity is presumed.  The applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  From the available evidence, it is apparent that his discharge was based on his misconduct and his conviction by civil authorities; therefore, there is an insufficient basis to support his request for an upgrade of his UD. 
4.  The applicant alleges that he was discharged as a result of conflict with his commander; however, he has provided no evidence, and there is none available to the Board, to support his allegation.  

5.  The applicant claims he was wounded in Vietnam; however, he submitted no evidence to support his claim.  The evidence shows he was medically reassigned in a patient status to the MHD, 106th General Hospital, Yokohama, Japan, and was a patient from 18 November 1968 until 21 January 1969.  The applicant's name does not appear on the Vietnam Casualty List and the reasons for his medical reassignment are not known.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___A____  __WDP__  __JP____  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.




_____James E. Anderholm_______
          CHAIRPERSON




INDEX

CASE ID
AR20070014345
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080304
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19700501
DISCHARGE AUTHORITY
AR 635-206
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.