IN THE CASE OF:	

		BOARD DATE:	                                                                 
		DOCKET NUMBER:  AR20080006938 


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, characterized as under other than honorable conditions, be upgraded to a general discharge.

2.  The applicant states, in effect, that he was 20 years old when he was sent to Vietnam; he was scared and confused, and he needed something to take the edge off of being in fear.  He states, in effect, that he made a bad decision and has now become clean of drugs.  

3.  The applicant provides several character reference letters and support from friends and co-workers; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 8 October 1970; and a copy of his DD Form 215 (Correction to DD Form 214), dated 10 January 2001, 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 was inducted into the Army of the United States on 22 April 1969.  He successfully completed basic combat training and advanced individual training at Fort Jackson, South Carolina.  He was awarded the military occupational specialty (MOS), 94B (Cook).  He was promoted to specialist four/pay grade E-4 on 9 March 1970.

3.  The applicant served in Vietnam from 25 September 1969 to 24 September 1970. 

4.  On 3 August 1970, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being incapacitated for the proper performance of his duties, on 1 August 1970, (as a result of previous indulgence in intoxicating liquor); and for being absent without leave (AWOL) on 3 August 1970.  His punishments consisted of reduction to pay grade E-1, extra duty and restriction for 14 days, and a forfeiture of pay.

5.  The applicant received nonjudicial punishment under Article 15, of the UCMJ, for disobeying the lawful command of a superior commissioned officer, on 5 August 1970, and for being AWOL.  His punishments consisted of a forfeiture of pay and extra duty.

6.  On 7 August 1970, the applicant's commander advised him that he was recommending he be separated from the service under the provisions of Army Regulation 635-212, for unfitness.  The commander based his recommendation on the applicant's defiance of military regulation and requirements, refusal to accept rehabilitative assistance, and a psychiatric recommendation.  

7.  On the same date, the applicant was advised by counsel concerning the actions that were being taken.  The applicant acknowledged the notification and after consulting with counsel, he waived his rights and elected not to submit a statement in his own behalf.

8.  There is no separation authority approval documentation in the applicant’s records.  In the absence of evidence to the contrary, Government regularity is presumed.  



9.  The evidence shows that the applicant was discharged on 8 October 1970, in pay grade E-1.  He had 1 year, 5 months, and 17 days of total active service.  The applicant’s service was characterized as under other than honorable conditions.  

10.  Evidence shows that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however it was not received within its 15-year statute of limitations.

11.  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.

12.  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.

13.  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 discharge was based on his defiance of military regulation and requirements, refusal to accept rehabilitative assistance, and a psychiatric recommendation.  The applicant continued to use drugs despite medical assistance and the evidence shows he was absent without leave on several occasions.  These violations contributed to and served as a basis for his discharge under the provisions of Army Regulation 635-212, for unfitness.  He was issued an undesirable discharge.

2.  The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.  The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case. 
3.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The evidence of record shows that the applicant did not attempt to or submit an application for an upgrade of his discharge to the ADRB within that board's 15-year statute of limitations.  The applicant applied to the ADRB in 2008.  It has been 38 years since he received his undesirable discharge.  The statutory period for appeals prohibits the ADRB from processing applications received after
15 years from the date of discharge or release from active duty.
 
5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to a general discharge, under honorable conditions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080006938



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ABCMR Record of Proceedings (cont)                                         AR20080006938



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