RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 March 2008
	DOCKET NUMBER:  AR20070016108 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable

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 that his undesirable discharge be upgraded to an honorable discharge, and that his records be corrected to show that he was discharged in the pay grade of E-4. 

2.  The applicant states that he was neither court-martialed nor had he received any disciplinary action taken against him.  He states that he does not understand how he could be reduced to the pay grade of E-1 without being convicted by a court-martial.  He states that he was given the Army Commendation Medal for meritorious service, a Vietnam Service Medal, a Vietnam Campaign Medal, and an undesirable discharge on the same day.  He states that after reading the Uniform Code of Military Justice, it was his understanding he was illegally held in confinement without pay and without being charged with anything.  He questions how his service could be less than honorable when he was awarded an Army Commendation Medal.  He states that his Report of Transfer or Discharge (DD Form 214) shows that he completed no training when he actually completed 31M Radio Relay and Carrier School in 1967 and Mine Warfare and Demo School in 1968.

3.  The applicant goes on to state that he suffered from dyslexia at the time that he entered into the Army and that up until just a few years ago he could not read or write.  He states that now that the problem has been corrected, he is able to read and understand the Congressional Code of Military Criminal Law.  He states that he understands that in order for him to be "locked up" he would have had to be court-martialed, found guilty of something, and sentenced to the stockade.  He states that none of these things happened, nor was he given an Article 15; therefore, he was illegally confined without pay for months, and illegally demoted to the pay grade of E-1.  He states that the Army talks about honor and then places him in jail without charging him and without pay; and furnishes him with a less than honorable discharge.  He states that he was more than willing to stay in the Army and to do his duty until the end of his enlistment.  He states that he was not able to read or write and that he was a high school drop out for the same reason. He states that he had no idea what his rights were under the UCMJ and that he explained that to everyone that would listen; however, the officers in charge just kept telling him to sign documents or he would be sent back to the stockade, and sent to Vietnam for the remainder of his enlistment.  He concludes by stating that what the Army did to him was in no way honorable.  He states that there is still time to do the right thing and that is to restore his rank and to upgrade his discharge to fully honorable.


4.  The applicant provides in support of his application, a statement addressed to the Board Members dated 19 October 2007; a copy of his DD Form 214 dated
15 November 1971; a copy of his DD Form 214 dated 25 February 1968; a copy of his Enlisted Qualification Record (DA Form 20); a copy of his Record of Court-Martial Conviction (Insert Sheet to DA Form 20); and a copy of Special Orders Number 05995 dated 29 May 1971.

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.  On 16 June 1967, the applicant enlisted in the Regular Army (RA) in Oakland, California, at age 17, with parental consent, in the pay grade of E-1.  At the time of his enlistment, he indicated that he had only a 10th grade education.  He went on to successfully complete his training as a radio relay and carrier operator.

3.  The applicant was promoted to the pay grade of E-2 on 16 October 1967, and he was transferred to Germany on 25 November 1967.  

4.  On 13 January 1968, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of restriction and extra duty.

5.  The applicant was promoted to the pay grade of E-3 on 18 February 1968.

6.  On 25 February 1968, the applicant was honorably discharged for the purpose of immediate reenlistment.  Accordingly, he reenlisted in the RA for 4 years on 26 February 1968.



7.  On 12 April 1968, NJP was imposed against the applicant for operating a 3/4 ton truck in a reckless manner, by backing the truck without guidance and striking and damaging a privately owned vehicle; and for operating a military vehicle without a valid operator's permit.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $20.00, restriction for 14 days, and extra duty for 7 days.  That portion of the punishment which pertained to the applicant's reduction to the pay grade of E-2 was suspended for a period of 90 days at which time, unless sooner vacated, the suspended portion of the punishment was to be remitted without further action.

8.  The applicant was transferred to Vietnam on 16 August 1968 and he was promoted to the pay grade of E-4 on 30 August 1968.  He returned to the Continental United States on 29 October 1968.

9.  On 22 April 1969, NJP was imposed against the applicant for being absent without leave (AWOL) from 15 February 1969 until 28 February 1969.  His punishment consisted of a reduction to the pay grade of E-2, and extra duty for 30 days.

10.  On 9 May 1969, the applicant was convicted by a special court-martial of failure to report for extra duty on 26 April and 28 April 1969.  He was sentenced to confinement at hard labor for 6 months, a reduction to the pay grade of E-1, and a forfeiture of pay in the amount of $50.00 per month for 6 months.

11.  The available records show that the applicant earned his General Educational Development (GED) diploma in July 1969.

12.  The applicant was convicted by a summary court-martial on 31 October 1969, for failure to go to his appointed place of duty.  He was sentenced to hard labor without confinement for 1 month, a forfeiture of pay in the amount of $68.00, restriction for 1 month, and extra duty for 1 month.

13.  The applicant again had NJP imposed against him on 5 December 1969, for failure to go to his appointed place of duty, and for breaking restriction.  His punishment consisted of a forfeiture of pay in the amount of $19.00, restriction for 10 days, and extra duty for 10 days.

14.  On 16 December 1969, the applicant was promoted to the pay grade of E-2.




15.  On 6 March 1970, NJP was imposed against the applicant for having unserviceable foot gear and failing to maintain such property in good condition, and for willfully disobeying a lawful order to have his foot gear either repaired or replaced.  His punishment consisted of a forfeiture of pay in the amount of $20.00, restriction for 7 days, and extra duty for 7 days.

16.  The applicant was promoted to the pay grade of E-3 on 11 May 1970.

17.  On 6 July 1970, NJP was imposed against the applicant for being AWOL from 24 June 1970 until 6 July 1970.  His punishment consisted of a reduction to the pay grade of E-2.

18.  The applicant was transferred to Vietnam on 11 July 1970.  The available records fail to show the date that he was promoted to the pay grade of E-3; however, his records show that he was promoted to the pay grade of E-4 on 7 November 1970.

19.  General Orders Number 05995 was published on 29 May 1971, awarding the applicant the Army Commendation Medal, for meritorious service, in connection with military operations against a hostile force, from 1 July 1970 through 30 May 1971, while in the Republic of Vietnam.

20.  The applicant's records show that he went AWOL on 7 July 1971 and he remained absent in desertion until 19 September 1971.  He went AWOL again on 21 September 1971 and he remained absent in desertion until he returned to military control and was placed in pretrial confinement on 28 October 1971.

21.  The facts and circumstances surrounding the applicant's discharge are not available for review.  However, the DD Form 214 that he was furnished shows that he was discharged on 15 November 1971, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 3 years 6 month and 14 days of total active service and he had approximately 316 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have 



been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

23.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 at the time, prescribed policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it stated that when the separation authority determines that a Soldier was to be discharged from the Service under other than honorable conditions, the Soldier would be reduced to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant's contentions regarding his being a high school drop out and his suffering from dyslexia have been noted.  However, they are not sufficient justification for upgrading his discharge.  The Board notes that the applicant earned his GED in July 1969 and he had been a member of the United States Army for over 3 years at the time that he committed the offenses that resulted in his discharge from the Army.  

3.  The Board has also noted the applicant's contentions regarding his being illegally reduced in rank and confined without pay.  In accordance with applicable regulation, when the separation authority determined that a Soldier was to be discharged from the Service under other than honorable conditions, the Soldier was to be reduced to the lowest enlisted grade.

4.  The applicant was AWOL from 7 July 1971 until 19 September 1971.  He went AWOL again on 21 September 1971 and he remained absent in desertion until he returned to military control and was placed in pretrial confinement on 28 October 1971.  Although the facts and circumstances surrounding his discharge are not available for review at this time, it is reasonable to presume that charges were pending against him at the time of his confinement and discharge.  This is evident by the fact that he was allowed to submit a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.



5.  The applicant's contention that he is owed pay for time that he was illegally confined is without merit.  The records show that each time that he was placed in confinement, he either had charges pending against him or he had been convicted by a court-martial.  The fact of the matter is that the applicant had NJP imposed against him on six separate occasions and he was twice convicted by a court-martial.  Even after continuously receiving punishment as a result of his acts of indiscipline, he continued to go AWOL.  He had approximately 316 days of lost time due to AWOL and confinement.  Considering his numerous acts of indiscipline, it does not appear that his undesirable discharge is too harsh.

6.  The applicant's contentions regarding the awards and decorations that he earned while he was in the Army for his service in Vietnam have been noted.  However, they are not sufficiently mitigating to warrant relief in this case when compared to the seriousness of his offenses.

7.  In order to justify correction of a military record the applicant must show 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.

8.  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

__JBG__  __RSV___  __DWS _  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 B. Gunlicks      __
          CHAIRPERSON

INDEX

CASE ID
AR2007001108
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
20080306
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE DISCHARGE
2.  689
144.7000/FOR THE GOOD OF THE SERVICE
3.  260
123.0000/LOST TIME
4.  261
123.0100/AWOL/DESERTION
5.  302
129.0000/PAY GRADE
6.