IN THE CASE OF:	  

		BOARD DATE:	        13 AUGUST 2008

		DOCKET NUMBER:  AR20080009392 


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 be upgraded to an honorable discharge.

2.  The applicant states that the type of discharge that he received does not reflect his Vietnam combat service; that he had typhus and malaria; or that he was involved in two major combat actions.  He states that his discharge was based on a civil conviction for marijuana at a time when counseling and drug treatment was not available to veterans that were returning home.  He states that no consideration was given to him for Post Traumatic Stress Disorder (PTSD).

3.  The applicant did not provide any additional evidence in support of his application.

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.  On 3 April 1967, the applicant enlisted in the Army in Los Angeles, California, for 3 years, in the pay grade of E-1.  He successfully completed his training as a combat engineer.  He was promoted to the pay grade of E-2 on 3 August 1967 and he was promoted to the pay grade of E-3 on 8 November 1967.  He was transferred to Vietnam on 24 November 1967.

3.  While in Vietnam, the applicant participated in the following five campaigns:  the Vietnam Counteroffensive, Phase III, which extended from 1 June 1967 through 29 January 1968; the Tet Counteroffensive, which extended from 30 January 1968 through 1 April 1968; the Vietnam Counteroffensive, Phase IV, which extended from 2 April 1968 through 30 June 1968; the Vietnam Counteroffensive, Phase V, which extended from 1 July 1968 through 1 November 1968; and the Vietnam Counteroffensive, Phase VI, which extended from 2 November 1968 through 22 February 1969.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 10 January 1968 for failure to obey a lawful order not to discharge a round from his weapon.  His punishment consisted of a forfeiture of pay in the amount of $32.00.

5.  On 9 February 1968, NJP was imposed against the applicant for willfully disobeying a lawful command from his superior commissioned officer to return to Camp Ray to process his Article 15.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay in the amount of $50.00 per month for 2 months.

6.  The applicant's records show that he was promoted to the pay grade of E-3 on 7 June 1968.

7.  On 7 July 1968, NJP was imposed against the applicant for being derelict in the performance of his duties by negligently failing to prepare for guard duty and being relieved from guard duty.  His punishment consisted of a forfeiture of pay in the amount of $32.00.

8. The applicant's Clinical Record Cover Sheet shows that he was diagnosed and treated for malaria and typhus on 19 September 1968, while he was in Vietnam.




9.  The applicant had NJP imposed against him on 1 October 1968 for failure to go at the time prescribed, to his appointed place of duty (reveille.)  His punishment consisted of a forfeiture of pay in the amount of $34.00.

10.  On 25 March 1969, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 15 December 1968 until 13 February 1969.  He was sentenced to hard labor without confinement for 45 days, a reduction to the pay grade of E-1, and a forfeiture of pay in the amount of $58.00.

11.  The applicant was convicted by a summary court-martial on 3 June 1969, for being AWOL from 28 March 1969 until 9 May 1969.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay in the amount of $73.00.

12.  The applicant's records show that he returned to the Continental United States on 23 July 1969.

13.  He went AWOL again on 8 August 1969 and he was AWOL on 29 September 1969, when a warrant was issued for his arrest by civil authorities. According to the available records, he was charged with two counts of possession of marijuana.  His records also show that he was arrested by civil authorities on 5 December 1969 and charged with the sale of marijuana.  Based on the available information, the applicant was sentenced to 7 years in jail.

14.  The facts and circumstances pertaining to the applicant's discharge are not present in the available record.  The Report of Transfer or Discharge (DD Form 214) that he was furnished indicates that he was discharged on 13 May 1970, under the provisions of Army Regulation 635-206 as a result of his conviction by civil authorities.  He had completed 1 year, 10 months, and 16 days of total active service and he had approximately 450 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

15.  On 15 June 1977 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, his contentions are not sufficiently mitigating to warrant an upgrade of his discharge.  While his service in Vietnam has been considered along with the fact that he suffered illnesses while he was in Vietnam, his records show that he had approximately 450 days of lost time due to AWOL and confinement.  He was AWOL during a time of war which could have resulted in a punitive discharge instead of the administrative discharge that he received.  

4.  The applicant was convicted by civil authorities for selling marijuana and there is no evidence in the available records, nor has he submitted any evidence that shows that he was addicted to drugs or had a drug problem while he was in the Army.  He had NJP imposed against him on four separate occasions and he was convicted twice by summary courts-martial as a result of his acts of misconduct.  Considering the nature of his offenses, it does not appear that his undesirable discharge is too severe.

5.  Additionally, a review of the available records does not show that the applicant has ever been diagnosed with PTSD.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080009392



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ABCMR Record of Proceedings (cont)                                         AR20080009392



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