RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070016402 


	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:


Mr. Frank C. Jones, II

Chairperson

Ms. Carmen Duncan

Member

Mr. Scott W. Faught

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 general discharge be upgraded to an honorable discharge. 

2.  The applicant states his discharge should be upgraded because his time served in the military was honorable.  He had received decorations and medals for his honorable service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), General Orders Number 12679 with Citation, and a Citation for the award of the Air Medal (AM).

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 personnel record shows that he enlisted in the Regular Army on 16 July 1968.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

3.  Headquarters, 1st Cavalry Division (Airmobile) General Orders Number 12679 shows that he was awarded the Army Commendation Medal (ARCOM) with "V" Device (for valor) for military operations against a hostile force in the Republic of Vietnam on 12 August 1969.  His Citation for the award of the AM shows he was awarded the AM for meritorious achievement, while participating in sustained aerial flight, in support of combat ground forces in the Republic of Vietnam.

4.  His military personnel record also shows that during the same period of service in the Republic of Vietnam he self-admitted that he shot himself in the foot because he could not take it any more and wanted to get out of field duty.
5.  The applicant's military personnel record shows he was absent without leave (AWOL) from 16 January 1970 to 6 March 1983.

6.  On 9 March 1983, he received notification that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 13  for unsatisfactory performance due to his lack of appropriate interest and inability to expend effort constructively in the future, including potential for advancement or leadership.  His retention would also have an adverse impact on military discipline, good order and morale.  His proposed separation could result in discharge characterized as General, under honorable conditions.

7.  He was advised of the rights available to him and the effects of a general discharge.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at hearing.  The commander also explained the applicant's waiver privileges and the procedures for withdrawal of a waiver.  

8.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel.  He understood that if he received a discharge/character of service which is less than honorable, he could make application to the Army Discharge Review Board or the Army Board for correction of Military Records for upgrading.  However, he realized that an act of consideration by either board did not imply that his discharge would be upgraded. He further understood that he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge.  The applicant did not submit a statement in his own behalf.

9.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the commander.

10.  On 22 March 1983, his commander recommended that he be discharged for unsatisfactory performance.  On 22 March 1983, the recommendation for separation was approved by the appropriate authority.

11.  On 13 April 1983, the applicant was given a General Discharge Certificate for unsatisfactory performance.  The DD Form 214 he was issued shows he had completed a total of 1 year, 7 months, and 7 days Net Active Service This Period and accrued 4,790 days time lost.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  The service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

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

14.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for unsatisfactory performance.

3.  The applicant stated that his discharge should be upgraded because he served his time honorably and he had received decorations and medals for his honorable service.  He was awarded the ARCOM with "V" Device (for valor) and the AM.  However, his personnel record also shows he had misconduct for shooting himself in the foot just so he would get out of the field duty.  As such, and in view of his extended AWOL time, his decorations are not sufficient to warrant upgrading the applicant's 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 discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ _FCJ__  __CD ___  __SWF  _  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.




___Frank C. Jones  ___
      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.