IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080004015 


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 undesirable discharge (UD) be upgraded.   

2.  The applicant states, in effect, that he was wrongfully accused of sleeping on guard duty and of smoking marijuana because of his nationality.  He claims his sergeant was prejudice (sic).   

3.  The applicant provides no additional documentary evidence 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 and entered active duty on 31 October 1968, and he was trained in and awarded military occupational specialty (MOS) 76A (Supply Clerk).  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 5 August 1969 through 20 August 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 577th Engineer Battalion, performing duties in MOS 76A as a supply clerk.  It also shows that he received "Unsatisfactory" conduct and efficiency ratings during this assignment.  Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM) with 
1 silver service star; RVN Campaign Medal with 60 Device; 2 Overseas Service Bars; and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

4.  The applicant's record documents no acts of valor or significant achievement. His record does reveal a disciplinary history that includes his acceptance of 
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions, and formal counseling by members of his chain of command on nine separate occasions between 15 August 1969 and 27 June 1970, for a myriad of disciplinary infractions.

5.  On 6 February 1970, the applicant accepted NJP for disobeying the lawful order of a superior noncommissioned officer (NCO).  His punishment for this offense was a reduction to private/E-2 (PV2).  

6.  On 27 March 1970, the applicant accepted NJP for sleeping on guard duty while responsible for observing possible enemy activity while in a hostile fire area.  His punishment for this offense was a reduction to private/E-1 (PV1), a forfeiture of $65.00 per month for two months, and 45 days of restriction and extra duty.  

7.  On 5 July 1970, the unit commander notified the applicant of the intent to recommend his elimination from the service under the provisions of Army Regulation 635-212, for unfitness, which would result in the applicant's receipt of an UD, and submitted his recommendation for the applicant's separation.  The commander cited the applicant's frequent incidents of a discreditable nature with military authorities and his drug abuse as the basis for taking the action.  


8.  In his discharge recommendation, the unit commander further indicated that the applicant was pending a Special Court-Martial (SPCM) for the following offenses:  possession of marijuana on 13 April and 1 May 1970; disobeying lawful orders on 14 and 30 April 1970; attempting to escape from lawful custody on 30 April and 1 May 1970; and possession of a dangerous narcotic drugs on 1 May 1970.  Criminal Investigation Division (CIB) and Laboratory reports were submitted with the separation recommendation to support the drug related charges.  

9.  On 25 July 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effect and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant waived consideration of his case by and personal appearance before a board of officers, and his right to representation by counsel.  He also elected not to submit a statement in his own behalf.  

10.  On 9 August 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, for unfitness and directed the applicant receive an UD.  On 20 August 1970, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 1 year, 9 months, and 20 days of creditable active military service, and that he held the rank of PV1 on the date of his discharge.  

11.  On 13 November 1972, the Army Discharge Review Board (ADRB), after careful consideration of all evidence submitted in support of his request, and the applicant's entire service record, determined his discharge was proper and equitable, and it denied the applicant's petition for an upgrade of his discharge. 

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's record of service; however, an UD was normally considered appropriate for members separating for unfitness.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust because he was falsely accused of sleeping on guard duty and of using marijuana based on his nationality because his sergeant was prejudiced was carefully considered.  However, there is insufficient evidence to support these claims.  

2.  The evidence of record documents no acts of valor or significant achievement on the part of the applicant.  However, it does confirm an extensive disciplinary history that includes his acceptance of NJP on two separate occasions, and his possession of dangerous drugs, as evidenced by CID and laboratory reports contained in the record.  His record clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge, and does not support an upgrade at this late date.  

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, the applicant's UD accurately reflects his overall record of service.  

4.  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

___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)                                         AR20080004015



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ABCMR Record of Proceedings (cont)                                         AR20080004015



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