IN THE CASE OF:	  

		BOARD DATE:	        30 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012275 


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 undesirable discharge be upgraded. 

2.  The applicant states that he served 6 months in Vietnam and after 40 years and the amnesty granted by the President, he should also receive an upgrade of his discharge. 

3.  The applicant provides a copy of his DA Form 20B (Record of Court-martial Convictions), 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.  The applicant enlisted in Portland, Oregon with a moral waiver on 14 June 1965 for a period of 3 years and training under the airborne enlistment option.

3.  He completed his basic combat and his advanced individual training (AIT) as an Infantry Indirect Fire Crewman at Fort Ord, California and was transferred to Fort Benning, Georgia to undergo his airborne training.  He was then sent to Fort Sam Houston, Texas for training as a medical corpsman.  He completed that training and was transferred to Fort Bragg, North Carolina for assignment to a medical company.  

4.  On 18 March 1966, he was convicted by a summary court-martial of being absent without leave (AWOL) from 7 February to 16 February 1966.  He was sentenced to hard labor without confinement for 30 days, a forfeiture of pay, and reduction to the pay grade of E-1.

5.  The applicant again went AWOL on 11 April 1966 and remained absent until he was returned to military control at Fort Belvoir, Virginia on 2 May 1966.  He again departed AWOL on 25 May 1966 and was returned to military control at Fort Belvoir on 28 May 1966.  

6.  On 23 June 1966, he was convicted by a special court-martial of being AWOL from 11 April to 2 May 1966 and from 25 May to 27 May 1966; and for violating the conditions of his parole on 25 May 1966.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay, and reduction to the pay grade of E-1.  He was transferred to Fort Riley, Kansas to serve his confinement.

7.  The applicant was convicted by a special court-martial on 24 August 1967 of being AWOL from Fort Riley from 23 September 1966 to 19 June 1967.  He was sentenced to confinement at hard labor for 6 months (suspended) and a forfeiture of pay.    

8.  The applicant departed for Vietnam on 7 October 1967 and arrived in Vietnam on 17 October 1967 for initial assignment to an infantry company and in January 1968, he was transferred to a medical company.

9.  On 5 April 1968, he was convicted by a special court-martial of disobeying a lawful order from a superior noncommissioned officer to go on patrol.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

10.  On 10 April 1968, the applicant underwent a neuro-psychiatric evaluation and the examining psychiatrist determined that he was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He further stated that 
there were no physical or mental defects to warrant discharge through medical channels.  He also stated that the applicant attributes his difficulties in the Army to his inability to accept orders that he does not like and indicated that the applicant expressed much pleasure with the prospect of a 212 discharge and expressed no motivation for future service.

11.  On 9 May 1968, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He cited the applicant’s disciplinary record, his failure to respond to counseling, his immature personality, impulsive behavior, poor judgment, and resentment of authority as the basis for his recommendation.

12.  On 28 May 1968, after consulting with counsel, the applicant acknowledged that he understood the consequences of a general or undesirable discharge and waived all of his rights, to include representation by counsel.  He also elected not to submit a statement in his own behalf.

13.  The appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

14.  Accordingly, the applicant was transferred to Fort Lewis, Washington where he was discharged with an undesirable discharge on 22 June 1968, under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He had served 1 year, 6 months, and 24 days of total active service and had 530 days of lost time due to AWOL and confinement.

15.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge to fully honorable on 29 September 1969.  He contended that he had been unjustly court-martialed and contended that he did not deserve to be given an undesirable discharge.  The ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his appeal on 18 March 1970.

16.  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 by the Board; however, they are also not sufficiently mitigating to warrant relief when compared to his repeated misconduct and his otherwise undistinguished 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)                                         AR20080012275



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ABCMR Record of Proceedings (cont)                                         AR20080012275



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