IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080005059 


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 the reason for his discharge did not pertain to his duty in the Army.  He adds that he had trouble adjusting when he came back from Vietnam.  He states that copies of his awards and assigned duties will show that he served his county to the best of his ability.  

3.  The applicant provides a copy of orders awarding him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) and a Certificate of Achievement in support of his request.

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 he enlisted in the Regular Army on 18 May 1966.  He was trained as an Aircraft Maintenance Crewman, in military occupational specialty (MOS), 67A.  He was promoted to PFC/E-3 effective 1 December 1966.  He served until he was honorably discharged on 4 June 1967 for immediate reenlistment.   He reenlisted on 5 June 1967.

3.  The applicant was promoted to pay grade E-4 on 12 October 1967.  He served in Vietnam from 3 August 1967 to 8 October 1969.  He was reduced to PFC, E-3, on 8 April 1970, apparently for misconduct.  A copy of the non-judicial punishment record is not available in the applicant's record for the Board's review.

4.  The applicant's record contains a Transcript of Minutes, from the Circuit Court of Alabama, the State of Alabama, Covington County, dated 10 November 1970. It states that the applicant entered a plea of guilty to charges of 2nd degree burglary.  The court adjudged him guilty and sentenced him to imprisonment in the Alabama State Penitentiary for 18 months.

5.  A review of item 38 (Record of Assignment), of the applicant’s DA Form 20 (Enlisted Qualification Record), lists his record of assignments and principal duties prior to and after his service in Vietnam.

6.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records; however, the applicant submitted a copy of his DD Form 214 which shows that on 19 March 1971, he was discharged in the pay grade of E-1, under the provisions of Army Regulation 635-206, for misconduct - due to a civil court conviction.  He was furnished an undesirable discharge.  He had a total of 4 year, 3 months, and 1 day of creditable service.  

7.  Item 11c (Reason and Authority), of the applicant's DD Form 214, shows the "SPN" (Separation Program Number) "284" was applied to his DD Form 214.  This SPN is applied to the DD Form 214 of those individuals who are discharged for misconduct–convicted or adjudged a juvenile offender by a civil court during current term of active duty. 

8.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal; the Vietnam Service Medal; the Republic of Vietnam Campaign Medal with Device (1960); and the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar (M-14).


9.  Item 26a (Non-Pay Periods Time Lost), of his DD Form 214, shows that he had lost time from 19 August 1970 to 19 March 1971, for a total of 212 days or 
7 months of time lost due to civil confinement.

10.  The applicant provided a copy of orders awarding him the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar (M-14).  This badge is shown on his DD Form 214.  He also provided a copy of a Certificate of Achievement dated 20 January 1969 that was awarded to him for rendering meritorious service in support of operations in the Republic of Vietnam.

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

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

13.  Table 1, Enlisted Separation Program Designator Chart, of Army Regulation 680-3-2, in effect at that time, establishes the proper SPN codes to assign to Soldiers separating from the Army.  This table confirms that the SPN of "284" is the appropriate code for individuals discharged for misconduct-convicted or adjudged a juvenile offender by a civil court during current term of active duty.

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.

15.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record does not contain a copy of his discharge "packet"; however, it does contain a copy of the completed DD Form 214 he was issued on his discharge date.  This document lists the authority for his discharge as Army Regulation 635-206, with an SPN of "284" which is the proper code for misconduct-convicted or adjudged a juvenile offender by a civil court during current term of active duty.

2.  The applicant alleges that the reason for his discharge did not pertain to his duty in the Army.  The evidence is clear.  The applicant was convicted of criminal behavior in accordance with his plea of "guilty" for 2nd degree burglary.  The Army discharged the applicant with an undesirable discharge in accordance with regulations in effect at the time.

3.  The applicant claims that he had trouble adjusting when he returned from Vietnam; however, there is no evidence that his service in Vietnam contributed in any way to his misconduct and to his civil conviction.

4.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

5.  The applicant also claims that his awards and assigned duties will show that he served his county to the best of his ability.  The awards he received while he served in Vietnam and his duty assignments were taken into consideration; however, they do not support an upgrade of his UD.

6.  From the available evidence, it is apparent that the applicant's discharge was based on his misconduct and his conviction by civil authorities.  The applicant has provided no evidence upon which to base an upgrade of his UD to either a general or to a fully honorable discharge; therefore, his request should be denied.









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)                                         AR20080005059



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ABCMR Record of Proceedings (cont)                                         AR20080005059



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