IN THE CASE OF:	  

		BOARD DATE:	  18 September 2008

		DOCKET NUMBER:  AR20080009437 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he was never court-martialed, he only received nonjudicial punishment, and he was awarded the Vietnam Service Medal with 1 bronze service star during his military service.  The applicant also states that he is currently homeless and unable to get a job or receive benefits.

3.  The applicant provides copies of his DA Form 20 (Enlisted Qualification Record), page 3 (Item 38); 3 DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 19 October 1971,
29 November 1971, and 6 December 1971; Department of Veterans Affairs (VA), Washington Regional Office, Washington, District of Columbia (DC), letter, dated 15 October 2007; and electronic mail (email) message, dated 9 January 2007, subject:  HINQ Response.

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 military service records contain a DA Form 20 (Enlisted Qualification Record) that shows he was inducted into the Army of the United States and entered active duty on 4 March 1971.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 67A (Aircraft Maintenance PH-1).  Item 33 (Appointments and Reductions) shows that the highest grade the applicant attained was private (PVT)/pay grade E-2.  Item 31 (Foreign Service) shows that he served in the Republic of Vietnam (RVN) from 31 August 1971 through 18 January 1972.  Item 38 (Record of Assignments), in pertinent part, shows he departed the RVN on
18 January 1972 and was assigned in a patient status to the Medical Holding Company, U.S. Army Hospital, Fort Monmouth, New Jersey.

3.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 24 March 1971.  This document shows that nonjudicial punishment was imposed by the commanding officer against the applicant for, on or about
20 March 1971, without authority, absenting himself from his unit, to wit:  Company E, 2nd Battalion, 3rd Basic Combat Training Brigade, located at Fort Dix, New Jersey, and remaining absent until on or about 21 March 1971.  The punishment imposed was forfeiture of $31.00 per month for 1 month, 14 days restriction to the company area, and 14 days extra duty.

4.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 6 April 1971.  This document shows that nonjudicial punishment was imposed by the commanding officer against the applicant for, on or about
4 April 1971, and on or about 5 April 1971, having been duly restricted to the limits of the company area, to wit:  Company E, 2nd Battalion, 3rd Basic Combat Training Brigade, located at Fort Dix, New Jersey, break said restriction.  The punishment imposed was forfeiture of $25.00 per month for 1 month.

5.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 19 October 1971.  This document shows that nonjudicial punishment was imposed by the commanding officer against the applicant for, on or about
1445 hours, 19 October 1971, having knowledge of a lawful order issued by his First Sergeant to perform repair and maintenance in the troop area, an order which it was his duty to obey, failed to do the same, in violation of Article 92, paragraph 29, UCMJ.  The punishment imposed was forfeiture of $50.00 per month for a period of 2 months (suspended for 7 days) and 7 days extra duty.
6.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 29 November 1971.  This document shows that nonjudicial punishment was imposed by the commanding officer against the applicant for, on or about
0730 hours, 27 November 1971, without authority, failing to go at the prescribed time to his place of duty, to wit:  A Troop maintenance section, and remaining absent until on or about 1630 hours, in violation of Article 86, paragraph 13, UCMJ.  The punishment imposed was forfeiture of $79.05 per month for a period of 2 months.

7.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 6 December 1971.  This document shows that nonjudicial punishment was imposed by the commanding officer against the applicant for, on or about
0900 hours, 5 December 1971, without authority, failing to go at the time prescribed to his place of duty, to wit:  A Troop maintenance area, and remaining absent until on or about 1630 hours, in violation of Article 86, paragraph 13, UCMJ.  The punishment imposed was forfeiture of $75.00 per month for a period of 2 months.

8.  On 9 December 1971, the major serving as Commander, Troop A,
7th Squadron, 17th Cavalry (RVN), notified the applicant of his intention to initiate discharge action against the applicant under the provisions of Army Regulation 635-212 for unfitness.  The commander stated the basis for his action was the applicant’s military history of commissions of court-martial offenses, which included his failure to obey a lawful order and being absent without leave (AWOL) on 29 November 1971, 1 December 1971, and 6 December 1971.  The applicant was advised that he had the right to a hearing before a board of officers, to submit a written statement in his own behalf, to be represented by counsel, and that he may waive these rights in writing. 

9.  The applicant’s military service records contain a copy of the applicant’s Statement of Waiver.  This document shows that the applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  This document also shows that the applicant waived consideration of his case by a board of officers, waived personal appearance before a board of officers, elected not to submit statements in his own behalf, and waived representation by counsel.  The applicant acknowledged that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He also acknowledged that he understood he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge under 
conditions other than honorable.  This document also shows that the applicant and the counseling officer certified the applicant’s Statement of Waiver by placing their signatures on the document 

10.  On 10 December 1971, the major serving as Commander, Troop A,
7th Squadron, 17th Cavalry (RVN), reviewed the applicant’s statement and choices pertaining to the rights available to him.  The commander stated that discharge was recommended because of the applicant’s record of frequent incidents of a discreditable nature with military authorities and an established pattern of shirking.  The commander also recommended the applicant be discharged for unfitness and issued an Undesirable Discharge Certificate.

11.  On 15 December 1971, the lieutenant colonel serving as Commander, 
10th Combat Aviation Battalion (RVN), recommended approval of the applicant’s discharge for unfitness and issuance of an Undesirable Discharge Certificate.

12.  The applicant’s military service records contain a copy of Headquarters and Installation Support Activity, Fort Monmouth, New Jersey, Special Orders Number 33, dated 11 February 1972, that promulgated the applicant’s discharge under the provisions of Army Regulation 635-212, under other than honorable conditions with issuance of an Undesirable Discharge Certificate, effective
8 February 1972.

13.  The applicant's military service records contain a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212, Separation Program Number (SPN) “386,” with service characterized as under other than honorable conditions, and issuance of an Undesirable Discharge Certificate, effective 8 February 1972.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Vietnam Service Medal with 1 bronze service star and the Marksman Marksmanship Qualification Badge with (M-16) Rifle Bar.  At that time, the applicant was credited with completing 11 months and 5 days net service this period.  This document also shows that the applicant was issued a DD Form 258A (Undesirable Discharge Certificate).

14.  On 20 September 1977, the applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of his undesirable discharge to an honorable discharge.  On 29 March 1978, the ADRB, after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB’s decision on 23 June 1978.


15.  In support of his application, the applicant provides the following documents.

     a.  An extract of his DA Form 20 (Enlisted Qualification Record), page 3 (Item 38) and 3 DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 19 October 1971, 29 November 1971, and 6 December 1971.  These documents were previously introduced and considered in this Record of Proceedings.

     b.  Department of VA, Washington Regional Office, Washington, District of Columbia (DC), letter, dated 15 October 2007, and an email message, dated
9 January 2007, subject:  HINQ Response.  These documents show that the applicant served in the U.S. Army and entered active duty on 4 March 1971, was released from active duty on 8 February 1972, and his character of service was “honorable.”

16.  Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that Soldiers discharged for frequent incidents of a discreditable nature based on a pattern of shirking will be furnished an under other than honorable conditions discharge certificate, except that an honorable or general discharge certificate may be awarded by the separation authority.

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.   Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN."  

18.  Army Regulation 635-5-1 (Separation Program Numbers (SPN) Codes), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from 
active duty, and the SPN codes to be entered on the DD Form 214.  It identifies the SPN code of “386” as the appropriate code to assign enlisted Soldiers discharged for unfitness based on an established pattern of shirking.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

20.  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.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded to an honorable discharge because he was never court-martialed, he only received nonjudicial punishment, and he was awarded the Vietnam Service Medal with 1 bronze service star during his military service.

2.  The applicant provides 2 documents from the Department of VA, Washington Regional Office, that show his character of service was honorable.  However, the applicant’s military service records contain no evidence that the applicant’s character of service was categorized as either honorable or under honorable conditions.  Thus, the evidence contained in the applicant’s military service records, refutes the evidence the applicant provides from the Department of VA.


3.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness based on frequent incidents of a discreditable nature with civil or military authorities was proper and equitable and in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, reason, and SPN Code recorded on the applicant’s discharge are valid.

4.  The evidence of record confirms the applicant’s contentions that he was never court-martialed, that he received nonjudicial punishment, and he was awarded the Vietnam Service Medal with 1 bronze service star during his military service.
However, these facts provide insufficient evidence to support a change to the applicant’s characterization of service during the period of service under review.

5.  During the period of service under review, the applicant’s military service records document his military history of commissions of court-martial offenses that included failure to obey a lawful order, breaking restriction, and 3 incidents of being AWOL, for which nonjudicial punishment was imposed on 5 occasions.  The evidence of record clearly shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to an honorable discharge.  Moreover, the evidence of record shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  The evidence of record shows that, prior to his separation, the applicant was advised that issuance of an undesirable discharge under conditions other than honorable may deprive him of many or all Army benefits; that he may be ineligible for many or all Department of VA benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  In addition, the applicant indicated that he understood these facts.  In this regard, the U.S. Army does not upgrade a former Soldier's discharge solely for the purpose of making the applicant eligible for employment or government benefits.

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

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)                                         AR20080009437



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ABCMR Record of Proceedings (cont)                                         AR20080009437



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