IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080013984 


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 an upgrade of his discharge.

2.  The applicant states that he served his country honorably for a period of 6 months in Germany and 1 year in Vietnam and that he would like his discharge upgraded.

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 5 February 1971 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's records show that he was inducted into the Army of the United States on 18 June 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36M (Wireman). He was honorably discharged on 24 February 1969 for the purpose of immediate reenlistment and he reenlisted for a period of 3 years on 5 February 1969.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records also show that he served in Germany from 29 November 1968 to 4 March 1969 and in the Republic of Vietnam from 11 April 1969 to 28 March 1970.

4.  The applicant's records show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Marksman Marksmanship Qualification badge with Rifle Bar (M-14).  His records do not show any acts of valor or significant achievements during his military service.

5.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

     a.  on 17 September 1968, for absenting himself without authority from his unit from on or about 9 September 1968 through 10 September 1968.  His punishment consisted of a forfeiture of $35.00 pay per month for 2 months,       21 days of restriction, and 21 days of extra duty; 

	b.  on 25 May 1969, for failing to secure his assigned weapon, on or about 24 May 1969.  His punishment consisted of a forfeiture of $25.00 pay for              1 month;

	c.  on 7 June 1969, for failing to secure his assigned weapon, on or about 6 June 1969.  His punishment consisted of a forfeiture of $25.00 pay for one month;

	d.  on 4 September 1970, for disobeying a lawful order, on or about 3 August 1970.  His punishment consisted of reduction to private first class (PFC)/E-3 (suspended for 6 months).  However, on 15 October 1970, the suspension of punishment of reduction to PFC/E-3 imposed on 4 September 1970 was vacated and ordered executed; and

	e.  on 7 December 1970, for absenting himself without authority from his appointed place of duty on or about 7 December 1970.  His punishment consisted of reduction to private (PV2)/E-2.

6.  On 15 January 1971, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-21 (Personnel Separations) for unsuitability.

7.  On 18 January 1971, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and did not submit any statements on his own behalf. 

8.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could also encounter substantial prejudice in civilian life.

9.  On 20 January 1971, the applicant’s immediate commander initiated separation action against the applicant in accordance with AR 635-212, by reason of unsuitability.  The immediate commander recommended a General Discharge Certificate and further remarked that:

	a.  the applicant was assigned to five different sections in the company and served under different supervisors, officers, and noncommissioned officers; however, in each case, his performance was unsatisfactory.  He had a history of social inadaptability prior to and during his military service.  The applicant's condition was part of a character and behavior disorder due to deficiencies in emotional and personal development of such a degree that seriously impaired his function in the military; and

	b.  the applicant was counseled on 16 different occasions for misconduct, performance, inefficiency, and other reasons.  His poor performance, lack of motivation, and poor judgment indicated that he was not committed to productive goals.  It was not believed that the applicant was amenable to any form of punishment, retraining, or other forms of rehabilitation within the military setting.

10.  On 25 January 1971, the applicant's senior commander recommended approval of the applicant's separation with a General Discharge Certificate.

11.  On 1 February 1971, the separation authority approved the applicant’s discharge under the provisions of AR 635-212 by reason of unsuitability and directed the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 5 February 1971.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions.  This form further confirms that he completed a total of
2 years, 7 months, and 19 days of creditable active military service.

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

13.  AR 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

14.  AR 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  .

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s entire record of service was considered and his service in Vietnam and Germany were noted.  However, his service in Germany and/or Vietnam is not sufficiently mitigating to upgrade his discharge.

2.  The evidence of record shows the applicant had a pattern of misconduct as evidenced by his 5 instances of nonjudicial punishment and multiples instances of counseling.  Furthermore, the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

3.  The reason for the applicant’s discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general discharge to fully honorable.

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.



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               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)                                         AR20080013984



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ABCMR Record of Proceedings (cont)                                         AR20080013984



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