IN THE CASE OF:	  

		BOARD DATE:	  	  24 July 2008

		DOCKET NUMBER:  AR20080008739 


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 reconsideration of his earlier request for an upgrade of his undesirable discharge.  

2.  The applicant states, in effect, that he did not have any knowledge of the statute of limitations to request an upgrade of his discharge.  He states that he had conditions of Post Traumatic Stress Disorder and exposure to Agent Orange in Vietnam.  He missed appointments at his place of duty and was absent without leave (AWOL).  He did not realize what was transpiring in his life nor was he aware of the consequences of his actions.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060014014 on 10 April 2007.

2.  The applicant has provided new arguments that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 21 June 1968 for a period of three years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 76Q (special purpose equipment specialist).  He was promoted to specialist four on 4 October 1968.  

4.  He served in Vietnam from December 1968 to December 1969.  

5.  On 19 December 1969, he was convicted by a special court-martial of failing to go to his appointed place of duty and for two specifications of willfully disobeying a lawful order.  He was sentenced to a forfeiture of $45.00 pay for 4 months and a reduction to private, E-2 (suspended for 4 months).  

6.  On 22 July 1970, the applicant was convicted by a special court-marital of failing to go to his appointed place of duty.  He was sentenced to a forfeiture of $118.00 pay for one month, a reduction to private E-1, and restriction for one month.   

7.  On 16 November 1970, the applicant was convicted by a special court-martial of being AWOL on two separate occasions from 3 August 1970 to 22 September 1970 and from 6 October 1970 to 18 October 1970.  

8.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 6 April 1971 for failing to obey a lawful order.  His punishment consisted of a forfeiture of $20.00 pay for one month.  

9.  The applicant accepted NJP under Article 15, UCMJ on 28 May 1971 for failing to report to his appointed place of duty.  His punishment consisted of a forfeiture of $25.00 pay for one month.  

10.  On 10 August 1971, the applicant was convicted by a summary court-martial of being AWOL from 2 July 1971 to 7 July 1971 and from 9 July 1971 to 30 July 1971.  He was sentenced to a reduction private, E-1, a forfeiture of $125.00 for one month, and confinement at hard labor for 30 days.  

11.  The applicant's discharge packet is not available.  However, his DD Form 214 shows he was discharged on 8 October 1971 under the provisions of Army Regulation 635-212 by reason of unfitness, frequent involvement of a discreditable nature with military authorities.  He was issued an Under Other Than Honorable Conditions (Undesirable Discharge) Certificate.  He completed 2 years, 8 months, and 12 days of creditable active service with 216 days of lost time due to AWOL and confinement.

12.  The applicant applied to the ABCMR on 24 September 2006 for an upgrade of his undesirable discharge to honorable.  The ABCMR denied his request on 10 April 2007.

13.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  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.

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

16.  Army Regulation 635-200 sets for the authority for the separation of enlisted personnel.  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.  In the absence of evidence to the contrary, it is presumed that the applicant’s administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The applicant’s service record shows he received two NJPs, two special courts-martial, and two summary courts-martial.  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 for an upgrade to a general discharge or fully honorable discharge.

3.  The applicant's contentions were noted.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to a general discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20060014014, dated 10 April 2007.




      _______ _xxxxx_____   ___
               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)                                         AR20080008739





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ABCMR Record of Proceedings (cont)                                         AR20080008739



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