IN THE CASE OF:	  

		BOARD DATE:	  	  24 July 2008

		DOCKET NUMBER:  AR20080007405 


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 that his undesirable discharge be upgraded to honorable. 

2.  The applicant states that while he was in Vietnam he earned the Combat Infantryman Badge and the Purple Heart, that his service was honorable, and that he performed to the utmost of his ability.  Upon returning home, he found it very difficult to adjust to the civilian world and was charged with offenses by the civil authorities.  At the time, he did not know what he was doing and found it very difficult to adjust.  The horrors of Vietnam stayed with him and continue to this day.  He believes his service should be honorable due to the time, effort, and sacrifice he made during the war.   

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) and a letter, dated 24 January 2008, from his clinical psychologist.

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 enlisted on 29 March 1966 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 11B (light weapons infantryman).  

3.  On 5 December 1966, in accordance with his pleas, the applicant was convicted by a summary court-martial of quitting his sentinel post without being properly relieved and talking when it was not in the line of duty while posted as a sentinel.  He was sentenced to be reduced to E-2, to be confined at hard labor without confinement for 30 days, and to forfeit $25.  On 5 December 1966, the convening authority approved the sentence. 

4.  The applicant served in MOS 11B and MOS 76W (petroleum storage specialist) in Vietnam from 13 December 1966 through 12 December 1967. 

5.  On 16 November 1968, the applicant was arrested by civil authorities and placed in jail pending trial for assault and attempted rape.  In May 1969, he was convicted by civilian authorities of attempted rape and was sentenced to serve 
6 years in prison.    

6.  On 9 October 1969, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 for conviction by civil court.  He waived consideration of his case by a board of officers, he waived representation by counsel, and he elected not to submit a statement on his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life in the event an undesirable discharge were issued, that he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.  

7.  On 31 December 1969, the separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.  

8.  Accordingly, the applicant was discharged on 15 January 1970 with an undesirable discharge under the provisions of Army Regulation 635-206 for conviction by civil court.  He had served 2 years, 7 months, and 10 days of creditable active service with 426 days of lost time due to civil confinement.  


9.  In support of his claim, the applicant provided a statement from his clinical psychologist.  She attests that the applicant is being treated for severe Post Traumatic Stress Disorder, alcoholism (in remission), and depression.    

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
 
11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate.  

12.  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.  

13.  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 one summary court-martial conviction and 426 days of lost time.  It appears he also committed a serious civil offense while in the Army.  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 a general or an honorable 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 for separation were appropriate considering all the facts of the case.
 BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  __xx____  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.



      ________xxxx___________
      		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)                                         AR20080007405



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007405



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1