IN THE CASE OF:	  

		BOARD DATE:	       13 August 2008

		DOCKET NUMBER:  AR20070019041 


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 be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that he lied over a speeding ticket and the offense he committed was perjury over a misdemeanor.  This was during the Vietnam conflict which he just came back from.  The incident occurred in a college town and he was singled out because of being a war veteran.  The applicant further states since his discharge he has raised his children to believe in the military, with one serving in Desert Storm.  Another child is serving in Iraqi Freedom and one is going to Iraq next month.  This request is for them.

3.  The applicant provides no additional documentation in support of this case.

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 on 1 September 1965 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 05B (Radio Operator).

3.  Evidence of record shows that the applicant was absent without leave (AWOL) for the period 18 May 1966 through 22 May 1966.

4.  The applicant arrived in Vietnam and was assigned to Headquarters and Headquarters Company, 3rd Brigade, 1st Infantry Division on or about 21 June 1966.   

5.  On 28 November 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty.

6.  On 16 December 1966, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

7.  On 27 May 1967, the applicant was convicted, contrary to his pleas, by a special court-martial of two specifications of disobeying a lawful order from superior commissioned officers and breaking restriction to the company limits.  His sentence consisted of confinement at hard labor for six months, forfeiture of $64.00 per month for six months, and reduction to the grade of Private (PVT)/
E-1.

8.  The applicant departed Vietnam on or about 5 November 1967.

9.  On 12 March 1968, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

10.  On 11 July 1968, the applicant accepted NJP under Article 15, UCMJ for two specifications of failing to be at his appointed place of duty, disobeying a lawful order, and being AWOL on 6 July 1968.

11.  On 22 July 1968, the applicant accepted NJP under Article 15, UCMJ for breaking restriction to the company limits.



12.  On 11 September 1968, the applicant was convicted, pursuant to his pleas, by a special court-martial of five specifications of failing to be at his appointed place of duty, for being AWOL during the period 2 August 1968 through 
15 August 1968, and failing to obey a lawful order from a superior commissioned officer.  His sentence consisted of confinement at hard labor for two months, forfeiture of $64.00 per month for three months, and reduction to the grade of PVT/E-1.

13.  On 8 October 1968, the applicant was apprehended by Riley County, Kansas civil authorities and was charged with perjury.  On 15 October 1968, the applicant pleaded guilty and was sentenced to confinement at hard labor (civilian authority) not to exceed seven months in the Kansas State Industrial Reformatory at Hutchinson, Kansas. 

14.  On 25 April 1969, the applicant was advised by registered mail by his company commander that he was initiating a request to discharge him under the provisions of Army Regulation 635-206.  He was advised that he could request appointment of military counsel to represent him and, in his absence, represent his case before a board of officers.  He was also advised that he may submit statements in his own behalf or waive the foregoing rights in writing.  The applicant indicated that he waived appointment of military counsel; he waived consideration of his case by a board of officers; he did not desire to provide a statement in his own behalf, and he did not intend to appeal his conviction.   

15.  On 22 August 1969, the applicant’s commander submitted a recommendation to discharge the applicant under the provisions of Army Regulation 635-206.  The commander based the reason on the applicant's conviction by civil court.

16.  On 5 September 1969, the appropriate authority approved the recommendation to administratively separate the applicant and directed he receive an undesirable discharge and that he be reduced to the lowest grade under the provisions of Army Regulation 635-206 for civil conviction.  On 
14 October 1969, he was separated after completing 2 years, 6 months, and 
9 days of creditable active service with 584 days lost due to AWOL and confinement.

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

18.  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.  

19.  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's records show that he received five Article 15s, he was convicted by two special courts-martial, he was AWOL on three occasions, and had two instances of military confinement and one civil confinement during his enlistment.  The applicant had completed 2 years, 6 months, 9 days of creditable active service with 584 days of lost time due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  __xx____  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.



      ______________________
               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)                                         AR20070019041



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ABCMR Record of Proceedings (cont)                                         AR20070019041



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