IN THE CASE OF:	  

	BOARD DATE:	  18 November 2008

	DOCKET NUMBER:  AR20080014044 


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.

2.  The applicant states, in effect, that he was deliberately exposed to Agent Orange toxins while serving in the Republic of Vietnam.  He contends that his commanding officer was unfair.  He now suffers from the side effects of that exposure.  He is now without any taxable income and is in need of medical attention.  

3.  The applicant provides copies of medical treatment records dated in 1994, 1999, and 2001.  

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 31 January 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 51A (Construction and Utilities Worker).

3.  On 13 October 1969, the applicant was discharged for the purpose of immediate reenlistment.  He had attained the rank of private first class, pay grade E-3, and had completed 8 months and 11 days of creditable active duty service.

4.  On 14 October 1969, the applicant reenlisted in the Regular Army, beginning in the rank of private first class, pay grade E-3, for 3 years.

5.  On 10 April 1970, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from on or about 5 February to on or about 22 March 1970.  His sentence consisted of reduction to pay grade E-1, forfeiture of $82.00 pay per month for 1 month, and confinement at hard labor for 30 days.  He served 25 days in confinement.

6.  On 14 May 1970, the applicant was assigned for duty as a utility helper with the 160th Engineer Detachment, in the Republic of Vietnam. 

7.  On 18 May 1970, the applicant was promoted to private first class, pay grade E-3. 

8.  On 17 October 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey lawful written and announced policies and orders by having an M-16 rifle in his personal wall locker and by inserting a magazine containing one or more live rounds of ammunition into the rifle and chambering a round in the rifle.  The punishment included reduction to grade E2.  The applicant did not appeal the punishment.

9.  A Report for Suspension of Favorable Personnel Actions (DA Form 268) dated 19 February 1971, suspended favorable personnel actions for the applicant.  He was under investigation for impersonating an officer, destruction of government property, and curfew violations.  






10.  On 20 February 1971, the applicant’s commanding officer made a statement asserting that the applicant had been a disciplinary problem since his arrival in the unit.  He had started fights, locked and loaded a weapon, been disrespectful toward a noncommissioned officer, and was investigated for impersonating an officer, destroying government property, and violating curfew.  On 24 February 1971, the commanding officer recommended that the applicant be barred to reenlistment.  On 11 March 1971, the appropriate authority approved the recommendation.

11.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 3 April 1971, under the provisions of Army Regulation 600-212, for unfitness due to frequent involvement of a discreditable nature with civil or military authority.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He had completed 1 year, 11months and 
20 days of creditable active duty and had 71days of lost time due to AWOL and confinement.

12.  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.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

3.  Notwithstanding the applicant's assertion that his commander was unfair, there is no available evidence showing that he had any mitigating circumstances that warrant an upgrade of his discharge.  
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 the aforementioned requirement.

5.  In view of the above, the applicant’s request should not be granted.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080014044



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