IN THE CASE OF:	  

	BOARD DATE:	  8 May 2008

	DOCKET NUMBER:  AR20070018387


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge (UD) be upgraded.

2.  The applicant states his discharge should reflect the overall character of the service he rendered.

3.  The applicant provides:

	a.  A letter from the American Legion, dated 26 November 2007.

	b.  A VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative).

	c.  A 3-page letter from the American Legion to the Army Review Boards Agency.

	d.  A 3-page clinical report from Dailey Life Center, Flint, MI.

	e.  A VA Form 21-4138 (Statement in Support of Claim), signed on 25 June 2007.

	f.  A 9 April 2007, Nation Personnel Records Center (NPRC) letter.

	g.  A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 27 August 1968 to 15 October 1970.

	h.  A copy of his DD Form 4 (Enlistment Contract) showing he enlisted in the Regular Army for 3 years.

	i.  Special Orders Number 291, Headquarters, US Army Training Center, Armor, Fort Knox, KY, dated 17 October 1968, awarding the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

	j.  General Orders Number 1048, Headquarters, 1st Infantry Division, Vietnam, dated 25 January 1970, awarding the Army Commendation Medal.

	k.  DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) showing he was convicted by a special court-martial on 18 August 1970 for three specifications of failure to go to duty and one specification of being absent without leave (AWOL) from 8 July 1970 to 5 August 1970.

	l.  A copy of his DA Form 20 (Enlisted Qualification Record).

	m.  A copy of DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), for being absent from Reveille Formation on 8 April 1969.

	n.  A copy of Special Orders Number 75, Headquarters, 4th CST Brigade, Fort Jackson, SC, dated 11 April 1969, showing forfeiture of pay as a result of Article 15.

	o.  A copy of DA Form 2627-1 (with two witness statements) for sleeping on duty on 30 July 1969.

	p.  A copy of Unit Order Number 42, Headquarters, 1st S&T Battalion, 1st Infantry Division, Vietnam, dated 18 August 1969, reducing him to Private.

	q.  Allied paperwork from June 1970 wherein the applicant requests reduction of his 3-year enlistment because he enlisted for airborne training, but was physically disqualified.  On 20 July 1970, Department of the Army office of Personnel Operations approved curtailment of the applicant's enlistment from 36 months to 24 months.

	r.  Four DA Forms 268 (Report for Suspension of Favorable Personnel Actions) based on the applicant's AWOL from 8 Jul 1970 to 5 August 1970 and various other indisciplines.

	s.  Special Court-Martial Order Number 61, Headquarters, 22nd Field Army Support Command, Fort Lee, VA, dated 27 August 1970.
	t.  Administrative separation packet for unfitness under the provisions of Army Regulation 635-212.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s discharge be upgraded to an honorable discharge based on the merit of his record.

2.  Counsel states the applicant met promotion standards; he worked under hazardous conditions in Vietnam; he continued to Soldier after receiving nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice; he acquiesced to an unfitness separation solely to expedite his discharge; the applicant's chain of command recommended he be given a general discharge, but a legal officer within the Office of The Staff Judge Advocate recommended an undesirable discharge and the Commanding General approved an undesirable discharge.  Counsel states that, had he been inducted for only 2 years, the applicant would have met all standards of service and been honorably discharged.

3.  Counsel provides those documents as stated above.

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 enlisted in the Regular Army for 3 years on 27 August 1968.  He enlisted in order to go to airborne training under the "Buddy Basic Airborne Plan."  However, he was medically disqualified while in Basic Training.  He was trained as a supply clerk and spent 1 year in Vietnam from May 1969 to May 1970.

3.  The applicant's record reveals a long history of acts of misconduct.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on two occasions:  on 9 April 1969 for missing Reveille Formation; and on 13 August 1969 for being asleep on duty in Vietnam.  He also was convicted by a special court-martial of twice missing Reveille Formation, failing to go to work formation, and for being AWOL from 8 July through 4 August 1970.

4.  The applicant sought and received a curtailment of his 36-month enlistment to 24 months; this would have allowed him to go home on 26 August 1970.  Instead, he was AWOL from 8 July 1970 through 4 August, and his separation was stopped by court-martial charges which were preferred against him.

5.  On 25 September 1970, the applicant's commander recommended he be separated for unfitness under the provisions of Army Regulation (AR) 635-212.  The separation packet contained two records of nonjudicial punishment (NJP) and one conviction by special court-martial.

6.  On 29 September 1970, the applicant consulted with counsel and acknowledged his rights under AR 635-212.  He declined a hearing before a board of officers and declined to make a statement.  The applicant's chain of command waived a rehabilitative transfer and recommended the applicant be discharged with a general discharge.  The separation packet was forwarded to the Acting Staff Judge Advocate who recommended disapproval of a general discharge in favor of an undesirable discharge.  The approving authority approved separation with an UD on 12 October 1970.

7.  On 15 October 1970, the applicant was separated with an UD under the provisions of AR 635-212 for unfitness.  He had 1 year, 10 months, and 21 days of creditable service and 88 days of lost time due to AWOL and military confinement.  He was awarded the Army Commendation Medal (for his Vietnam service), the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service.  The regulation further provided, in pertinent part, that service members discharged for unfitness would be furnished an undesirable discharge, unless circumstances warranted a general or honorable discharge.  Service members discharged for unsuitability would be furnished an honorable or general discharge.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 7 March 1985, denied his request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.  Both he and counsel argue that his overall character of service, especially his Vietnam service, elevated his characterization to at least a general discharge.

2.  The applicant received NJP while in training in the United States; he received NJP while serving in Vietnam; and he was tried by court-martial upon his return from Vietnam.  While his two NJP's were for minor military offenses (missing formations), they demonstrated an attitude that was prejudicial to good order and discipline.

3.  The applicant sought to curtail his enlistment contract of 3 years.  His chain of command supported his request and endorsed it to Headquarters, Department of the Army where it was approved on 20 July 1970.  However, the applicant did not even give his chain of command the courtesy of awaiting the outcome of his request for discharge.  Instead, he went AWOL on 8 July 1970.  The applicant had won his early release with an honorable discharge, but he subsequently lost it by committing his most serious act of indiscipline.

4.  For reasons unknown, the applicant's chain of command endorsed his separation under AR 635-212 with a general discharge.  Unfortunately for the applicant, the final decision resided with the approving authority and he accepted the advice of his Staff Judge Advocate to reject a general discharge in favor of an undesirable discharge.  That decision was completely within his prerogative as the approving authority.

5.  Most discharges for unfitness resulted in undesirable characterizations of service.  The applicant's record of service placed him squarely in the undesirable category.  Nothing in his record, to include his Army Commendation Medal, warrants upgrading his characterization to general or honorable.

6.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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       _   _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070018387



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ABCMR Record of Proceedings (cont)                                         AR20070018387



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