IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080006288 


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 an upgrade of his discharge.

2.  The applicant states his discharge is unjust because he completed 12 months of service in the Republic of Vietnam where he was awarded five medals and was promoted to specialist five (SP5)/E-5.  He states, in effect, that his troubles started upon his assignment to Fort Carson, Colorado, after his return from Vietnam.  He was separated from his spouse after 6 months of marriage, which caused him to turn to drugs.  He just wanted to go home and get straightened out; but, he did that at the expense of his military service.  He made a bad decision that he deeply regrets.

3.  The applicant provides the following additional documentary evidence in support of his application:  

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 10 April 1970. 

	b.  Character reference letter, dated 23 January 2008.

	c.  Statement of support, dated 23 January 2008, from the applicant’s spouse. 

	d.  Undated character reference letter from a circuit judge.

	e.  Statement of support, dated 14 September 1971, from the Vice President of Local Union Number 1792, United Brotherhood of Carpenters and Joiners of America.
	
	f.  Undated and unsigned DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States).

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 records show that he enlisted in the Regular Army for a period of 3 years on 5 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63C (General Vehicle Repairman).  The highest rank/grade he attained during his military service was SP5/E-5.

3.  The applicant’s records also show he served in the Republic of Vietnam from 17 May 1968 to 14 May 1969.  His awards and decorations include the National Defense Service Medal, the Army Commendation Medal, the Vietnam Service Medal with two bronze service stars, and the Vietnam Campaign Medal with 1960 Device.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 9 December 1967, for wrongfully appearing without having a neat hair cut, on or about 9 December 1967.  His punishment consisted of an oral reprimand.


	b.  On 28 April 1969, for being absent without leave (AWOL) during the period on or about 25 April 1969 through 26 April 1969, and violating a lawful general order in the Republic of Vietnam by staying overnight in a local village, on or about 25 April 1969.  His punishment consisted of a forfeiture of $75.00 pay for
2 months and reduction to specialist four (SP4)/E-4 (suspended until 30 June 1969). 

	c.  On 30 October 1969, for being AWOL during the period on or about 21 October 1969 through 23 October 1969.  His punishment consisted of a forfeiture of $75.00 pay per month for 2 months and reduction to SP4/E-4 (suspended for 60 days).

5.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows the applicant was reported AWOL from 21 October 1969 to 22 October 1969 and from 10 January 1970 to 21 January 1970. 

6.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's DD Form 214 shows he was discharged on 10 April 1970, in accordance with the provisions of Army Regulation 635-212 (Personnel Separations), for frequent incidents of a discreditable nature, in pay grade E-1, and was furnished an Under Other Than Honorable Conditions Discharge.  This form further shows he completed 2 years, 6 months, and 13 days of military service during this period of enlistment and he had 23 days of lost time due to being AWOL.

7.  The applicant submitted a character reference letter, dated 23 January 2008, in which the author states that in the many years he has known the applicant, he has not seen or heard any negative aspects of his character and that he and his spouse raised five children, two of which are serving in the military.  

8.  In her statement dated 23 January 2008, the applicant’s spouse states that she has known the applicant for over 30 years and feels qualified to speak of his past and current character.  She adds that he was young at the time and got caught up in a bad situation that soon went out of control.  However, since his discharge he regretted his actions every day, rebuilt his life, raised a good family, completed carpenter school, worked hard, and set a good example to his family.  She further appeals to the Board to upgrade the applicant’s discharge because he is a great member of our society who supports the troops and the country.  

9.  In an undated letter of support from a circuit judge, he states that the applicant has nothing to gain at this stage of his life regarding his discharge upgrade, except peace of mind, and he was young at the time and was less exemplary than he is today.  He also adds that the applicant is very supportive of the troops and is surprised that his discharge was less than honorable.

10.  In his statement, dated 14 September 1971, the Vice President of Local Union Number 1792, United Brotherhood of Carpenters and Joiners of America, describes how the applicant was selected to undergo carpenter training and how hard he worked to become an apprentice and carpenter.  

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

12.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  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
This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 post service achievements and training, as well as his character reference letters and/or letters of support were noted.  However, they are not sufficiently mitigating to grant the requested relief.  

2.  The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army.  However, his DD Form 214 shows he was discharged in accordance with the provisions of Army Regulation 615-212, for frequent incidents of a discreditable nature, in pay grade E-1 and was furnished an Undesirable Discharge Certificate (Under Other Than Honorable Conditions Discharge Certificate).

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations at the time, with no procedural errors, which would tend to jeopardize his rights.  

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



															XXX
      _______ _   _______   ___
               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)                                         AR20080006288



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006288



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1