IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080000025 


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 in effect, that his discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that the character of his discharge is not reflective of his exemplary service.  He was awarded the Purple Heart (PH), two Bronze Star Medals with “V” Device and the Army Commendation Medal with “V” Device.   

3.  The applicant provides no additional documents in support of his application.

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 that he enlisted in the Regular Army with a moral waiver on 8 May 1967, for a period of 3 years.  He completed the required training and was awarded Military Occupational Specialty (MOS) 11B (Light Weapons Infantryman).  The highest grade he attained was pay grade E-3.  

3.  On 27 March 1968, the applicant was convicted by a Summary Court-Marital (SCM) of one specification of being absent without leave (AWOL) from 
20 November 1967 to 28 February 1968.  He was sentenced to a forfeiture of $50.00 pay and confinement at hard labor for 30 days.

4.  On 27 September 1968, while assigned to a unit in Vietnam, the applicant accepted nonjudicial punishment for discharging a 50 caliber machine gun and slightly injuring a fellow Soldier.  His imposed punishment was a forfeiture of $55.00 pay. 

5.  The applicant’s record contains orders that show:

	a.  On 20 October 1968, he was awarded the Army Commendation Medal for Heroism.  In connection with military operation against a hostile force.  The applicant distinguished himself by heroic actions on 28 August 1968, while serving with Troop B, 3d Squadron, 4th Cavalry in the Republic of Vietnam.  

	b.  On 2 November 1968, he was awarded the Bronze Star Medal for Heroism.  The applicant distinguished himself by heroic actions on 
25 August 1968, while serving with Troop B, 3d Squadron, 4th Cavalry in the Republic of Vietnam.

6.  On 29 January 1969, the applicant was convicted by a SCM of two specifications of disobeying a lawful command from his superiors, for failure to go to his appointed place of duty at the prescribed time and for being disrespectful in language towards his superior noncommissioned officer.  He was sentenced to hard labor without confinement for 20 days, a forfeiture of $78.00 pay and a reduction to pay grade E-1.

7.  On 5 February 1969, the applicant was advised by the unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unsuitability.  The stated reason for the recommendation was the applicant had been counseled on many occasions, as to his actions, lack of discipline, indifferent attitude, lack of respect for authority, refusal to obey orders and his rejection of all attempts of rehabilitation.  The commander adds that the applicant could not be trusted to perform normal duties without constant supervision.  He refused to perform any troop details and he was very disrespectful towards his superiors.  He was completely untrustworthy and stated that he wanted to get out of the Army and that he would do whatever was necessary.  He openly admitted to smoking marijuana.  The commander believed the applicant could no longer make a contribution towards the mission of his unit or any other unit and it would be in the best interest of the service and himself that he be eliminated for reason of unsuitability under the provisions of Army regulation 635-212.  On the same day, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  The applicant did not submit a statement in his behalf.

8.  On 7 February 1969, the applicant was evaluated by a psychiatrist.  The applicant was diagnosed to have an antisocial personality disorder, chronic, moderate.  The applicant was referred to mental hygiene at his own request because of personal problems.  The psychiatrist discovered from the applicant that he had a chaotic past history including 5 ½ years in jail or juvenile homes for offenses such as car theft, burglary and armed robbery.  He found that the applicant’s function as a Soldier was gradually deteriorating to the point he was unable to manage as an effective Soldier.  The applicant believed that he could no longer expose himself to combat and he could not be relied upon to support his unit.  It was determined that the applicant was not motivated for further military service and that he was a drain upon the resources of the Army.  The applicant was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The applicant also met retention standards and there were no psychiatric disease or defect which warranted disposition through medical channels.  The psychiatrist recommended that the applicant be administratively separated from the military under the provisions of Army Regulation 635-212.

9.  On 10 February 1969, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability and that he receive a General Discharge Certificate.  His DD Form 214 also show that he was awarded the Purple Heart, two Bronze Star Medals, with “V” Device, Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and the Combat Infantryman Badge.

10.  On 21 February 1969, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time, confirms the applicant completed a total of 1 year, 
4 months and 12 days of creditable active military service and 152 days of time lost due to being AWOL and in confinement.  
11.  Army Regulation 635-212 (Personnel Separations), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

12.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  Although, the applicant had periods where he distinguished himself by heroic actions.  The applicant’s military record also shows that he had an extensive disciplinary history of military infractions and based on his record of indiscipline, the applicant's service clearly shows his discharge was appropriate.  The quality of the applicant’s service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to an honorable discharge.

2.  The evidence of record confirms the applicant’s unit commander notified the applicant of the contemplated separation action and that the applicant consulted with legal counsel.  It further shows that after being advised of the basis for the contemplated separation action and its possible effects, the applicant voluntarily elected to waive his right to have his case considered by a board of officers and he elected not to submit a rebuttal statement in his own behalf. 

3.  After carefully evaluating the evidence of record in this case, it is determined that the applicant’s discharge processing was conducted in accordance with law and regulations applicable at the time and that the character of his service is commensurate with his overall record of military service.  The evidence of record confirms the applicant’s rights were fully protected throughout the separation process.
4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met; and the rights of the applicant were fully protected throughout the separation process.  

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X_____  ___X____  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.




       _   ____X__   ___
       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)                                         AR20080000025



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ABCMR Record of Proceedings (cont)                                         AR20080000025



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