RECORD OF PROCEEDINGS


	IN THE CASE OF:	  .


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080001283 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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.

2.  The applicant states, in effect, that he wants the injustice set aside so he can be given the proper credit for his service.  He points out that he served 8 months and 28 days in a hostile environment during Vietnam.  

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge); a DD Form 215 (Correction to DD Form 214); and a copy of his DA Form 20 (Enlisted Qualification Record).

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 was inducted on 8 April 1968.  He successfully completed basic training and One Station Unit Training in military occupational specialty 76A (supply clerk).  

3.  On 19 July 1968, nonjudicial punishment was imposed against the applicant for absenting himself from his appointed place of duty (guard duty).  His punishment consisted of an oral reprimand and a forfeiture of pay. 

4.  On 19 December 1968, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from his unit in Vietnam for approximately 3 hours, violating a lawful general regulation, and resisting apprehension.  He was sentenced to forfeit $50 pay per month for 1 month, to be restricted for 30 days to the battery area and his place of duty, and to be reduced to E-1.  On 27 December 1968, the convening authority approved the sentence. 

5.  On 28 January 1969, in accordance with his pleas, the applicant was convicted by a special court-martial of disobeying a lawful command and breaking restriction.  He was sentenced to forfeit $50 pay per month for 6 months and to be confined at hard labor for 6 months.  On 31 January 1969, the convening authority approved the sentence.  On 26 February 1969, the unexecuted portion of the sentence to confinement was suspended for 5 months.

6.  On 22 May 1969, nonjudicial punishment was imposed against the applicant for leaving his post as a sentinel in Vietnam before being relieved and being found drunk on duty (sentinel) in Vietnam.  His punishment consisted of a forfeiture of pay. 

7.  On 13 June 1969, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  

8.  On 16 June 1969, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and waived representation by counsel.  He also elected not to submit a statement on his own behalf. 

9.  The separation authority directed the discharge of the applicant under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He also directed that the applicant be furnished an undesirable discharge.      

10.  On 7 July 1969, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 1 month, and 29 days of creditable active service with 31 days lost due to confinement.  

11.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  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.  

14.  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 record of service included two nonjudicial punishments, one summary court-martial conviction, one special court-martial conviction, and 
31 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  
 
3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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


ABCMR Record of Proceedings (cont)                                         AR20080001283


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508