IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010207 


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 or general discharge. 

2.  The applicant essentially states that he started using drugs during his tour in Vietnam, but that he still performed his duties well.  He also states that he reenlisted and was assigned to a unit in Germany, and that he did well in the beginning there by passing different courses which are listed in his military records, but even though he tried to do well, drugs continued to be a problem for him.  He further states that he was next assigned to Fort Carson, Colorado, where his drug addiction continued to be a problem, and resulted in his undesirable discharge.  He continued by essentially stating that he has turned his life around and has not used drugs for many years, and that if not for Vietnam, he probably would not have used drugs, and wishes to be considered for a discharge upgrade.

3.  The applicant provides a self-authored statement, dated 27 May 2008; the 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued when he was honorably released from active duty on 20 October 1967; and the DD Form 214 that was issued at the time of his undesirable discharge on 28 April 1972 in support of this 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.  The applicant's military records show that he enlisted in the Regular Army on 27 October 1964.  He completed basic and advanced individual training (AIT) and was awarded military occupational specialty 05C (Radio Teletype Operator). However, prior to completing AIT, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 17 June 1965.  His punishment consisted of forfeiture of $20.00, restriction for 14 days, and extra duty for 14 days.

3.  After completing a tour in France from July 1965 to August 1966, he was reassigned to Corpus Christi, Texas.  He then departed for the Republic of Vietnam in December 1966.  He returned to the continental United States on or about 20 October 1967, and was honorably released from active duty on that date.  The DD Form 214 that was issued to him at the time of his release from active duty shows that he was awarded the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 15 January 1968, the applicant reenlisted in the Regular Army, then departed for a tour in Germany on or about 22 January 1968.

5.  On 16 February 1968, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without proper authority from his unit on or about 2400 hours on 15 February 1968, and remaining so absent until on or about 0130 hours on 16 February 1968.  His punishment consisted of reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, which was suspended until 15 April 1968 and ultimately remitted without action; restriction for 10 days; and extra duty for 10 days.   
6.  Between 1968 and 1969, the applicant completed a Noncommissioned Officer (NCO) Course and a Chemical, Biological, and Radiological (CBR) NCO Course.

7.  On 30 June 1970, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 22 June 1970, and remaining so absent until on or about 23 June 1970; and for failing to obey a lawful order issued by a commissioned officer in a policy letter.  His punishment consisted of forfeiture of $100.00 pay per month for 2 months and reduction in rank and pay grade from sergeant/E-5 to specialist four/E-4, the latter of which was suspended until 31 August 1970 and ultimately remitted without action.

8.  On 21 June 1971, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully having in his possession 1 ounce, more or less, of marijuana.  His punishment consisted of an oral reprimand and a reduction in rank and pay grade from sergeant/E-5 to specialist four/E-4, the latter of which was suspended for 60 days.  However, on 26 July 1971, the applicant's suspended reduction in rank and pay grade from sergeant/E-5 to specialist four/E-4 was vacated.

9.  In September 1971, the applicant returned to the continental United States from Germany and was reassigned to Fort Carson, Colorado in October 1971.

10.  On 20 March 1972, the applicant was convicted by a summary court-martial for absenting himself without authority from his unit on or about 18 February 1972, and remaining so absent until on or about 1 March 1972.  He was sentenced to be reduced in rank and pay grade from specialist four/E-4 to private/E-1, to forfeit $50.00 pay per month for 1 month, and to be confined at hard labor for 15 days.  On 20 March 1972, the applicant's sentence was approved.

11.  A mental status evaluation was subsequently conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.

12.  On 28 March 1972, the applicant's commander recommended that he be discharged under the provisions of Army Regulation 635-212 because of unfitness.  The reason for this recommendation was the applicant's frequent incidents of a discreditable nature with military authorities.  He also recommended that the applicant be furnished an Undesirable Discharge Certificate.

13.  In an undated certificate, the applicant's commanding officer essentially stated that since the applicant's assignment to his unit, he had continually proven himself to be unreliable and a substandard Solder.  He also stated that the applicant has been counseled on many occasions by his section chief, platoon leader, first sergeant, and himself regarding his appearance, punctuality, and attitude, but that there was no improvement in his appearance or attitude, and that his punctuality further deteriorated.  He further stated, in pertinent part, that the applicant was slovenly, lazy, and had to be continually driven to stay at even minimum standards.  He continued by essentially stating that it was the stated desire of the applicant to get out of the United States Army as rapidly as possible, and that he strongly recommended that the applicant be discharged and furnished an Undesirable Discharge Certificate.

14.  On 30 March 1972, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under the provisions of Army Regulation 635-212.  He also waived consideration of his case before a board of officers, as well as personal appearance before a board of officers.  He elected not to submit statements in his own behalf, and waived representation by counsel.  He also understood that as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  In a personal statement regarding his administrative elimination, the applicant voluntarily stated that his attitude towards the Army was very poor, and essentially stated that the type of discharge he may receive would suit him just fine.  

15.  On 21 April 1972, the proper separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness, and directed that he be furnished an Undesirable Discharge Certificate.  On 28 April 1972, the applicant was discharged accordingly.

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  The applicant essentially stated that he started using drugs during his tour in Vietnam, but that he still performed his duties well.  He also stated that he reenlisted and was assigned to a unit in Germany, and that he did well in the beginning there by passing different courses which are listed in his military records, but even though he tried to do well, drugs continued to be a problem for him.  He further stated that he was next assigned to Fort Carson, Colorado, where his drug addiction continued to be a problem, and resulted in his undesirable discharge.  He continued by essentially stating that he has turned his 
life around and has not used drugs for many years, and that if not for Vietnam, he probably would not have used drugs, and wishes to be considered for a discharge upgrade.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation stated, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides, in pertinent part, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

20.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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 contends that his undesirable discharge should be upgraded to an honorable or general discharge. 

2.  The applicant's contention regarding his post-service abstinence from drugs was noted.  However, good post-service conduct alone is not a basis for upgrading a discharge.

3.  The applicant's entire record of service, which included service in Vietnam, was considered.  However, the applicant's offenses, when taken together, so far outweigh his record of service that upgrade of his discharge cannot be justified.  


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.

5.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The type of discharge directed was appropriate considering all the facts of the case.  The evidence of record also confirms that the rights of the applicant were fully protected throughout the separation process.

6.  The applicant’s record of service revealed NJP under Article 15 of the UCMJ and a court-martial conviction.  Based on the applicant's extensive record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As a result, he is not entitled to either an honorable or general discharge.

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)                                         AR20080010207



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ABCMR Record of Proceedings (cont)                                         AR20080010207



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