IN THE CASE OF:	  

	BOARD DATE:	  03 July 2008

	DOCKET NUMBER:  AR20080007443 


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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states that during combat in Vietnam he suffered a nervous breakdown around December 1969, which caused problems up to the time of his discharge.  He also states that at the time of his discharge in 1971, he was unaware of the problems his discharge would cause because of his mental problems at the time.  

3.  The applicant provides copies of his DD Forms 214.

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 was born on 8 November 1950 and enlisted in Kansas City, Missouri on 10 January 1969 for a period of 3 years under the airborne and buddy basic training enlistment option.  He completed his training and was transferred to Vietnam on 28 July 1969 for assignment as an infantry indirect fire crewman.

3.  On 6 October 1969, he was honorably discharged for the purpose of immediate reenlistment.  He had served 8 months and 27 days of active service at that time.  

4.  On 7 October 1969, he reenlisted for a period of 3 years and transfer to an aircraft maintenance military occupational specialty (MOS).  On 24 November 1969, he was transferred to the 183rd Aviation Company for duty as an aircraft maintenance apprentice.  He was advanced to the pay grade of E-4 on 15 April 1970 and while the available records do not reveal the reasons, the applicant was reduced to the pay grade of E-2 on 26 April 1970 as a result of the imposition of nonjudicial punishment (NJP).

5.  On 22 July 1970, he was convicted by a special court-martial of committing an assault upon two Soldiers by threatening them with a dangerous weapon (loaded M-16 rifle).  He was sentenced to a forfeiture of pay.   

6.  He departed Vietnam on 30 July 1970 and was transferred to Fort Bragg, North Carolina.  On 13 November 1970, NJP was imposed against him for failure to go to his place of duty, disobeying a lawful order, and operating a motor vehicle in a reckless manner above the speed limit.  His punishment consisted of 30 days extra duty.   

7.  On 29 December 1970, he went absent without leave (AWOL) and remained absent in a deserter status until he was returned to military control at Fort Leonard Wood, Missouri on 25 February 1971.  On 18 March 1971, NJP was imposed against him for the AWOL charge.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

8.  On 23 March 1971, he was transferred to Fort Riley, Kansas for assignment to an artillery battery.

9.  The applicant underwent a psychiatric evaluation on 5 August 1971 and the division psychiatrist opined that he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He also stated that the applicant was and is mentally responsible, able to distinguish right from wrong and to adhere to the right and that he had the mental capacity to participate in board proceedings.  
10.  On 6 August 1971, he was convicted by a summary court-martial of being AWOL from 7 June to 24 June 1971 and from 25 June to 23 July 1971.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay.  However, the convening authority suspended the portion of the sentence to confinement at hard labor for a period of 30 days unless sooner vacated.

11.  On 9 August 1971, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-212 for unfitness, due to his habit and traits of character manifested by habitual shirking.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

12.  The appropriate authority (a brigadier general) approved the recommendation for discharge on 1 October 1971 and directed that the applicant be furnished an Undesirable Discharge Certificate.

13.  Accordingly, he was discharged under other than honorable conditions on 14 October 1971, under the provisions of Army Regulation 635-212 for unfitness. He had served 1 year, 8 months and 25 days of active service during his current enlistment for a total of 2 years, 5 months, and 22 days of total active service and had 103 days of lost time due to AWOL.

14.  On 5 September 1974, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general discharge.  The ADRB denied his request on 20 November 1974.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents and lewd or indecent acts were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.     

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted; however, they are also not sufficiently mitigating to warrant relief when compared to his repeated misconduct and 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

__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)                                         AR20080007443



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ABCMR Record of Proceedings (cont)                                         AR20080007443



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