IN THE CASE OF:	  

		BOARD DATE:	       11 December 2008

		DOCKET NUMBER:  AR20080014250 


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 undesirable discharge to a general discharge.

2.  The applicant states he was an 18-year old kid who was sent to Vietnam with a severe bilateral eye condition and he was treated badly by everyone because he could not qualify with his assigned rifle.  He states he was not given “the right due process.”  

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 he was born on 5 February 1948 and enlisted in the Regular Army for a period of 3 years at 19 years and 2 months of age on 17 April 1967.  He completed basic combat training; however, his record shows he was assigned to three different advanced individual training units at Fort Dix, NJ from 17 June - 14 November 1967 for training in MOS (military occupational specialty) 36K (Field Wireman).  It appears he did not qualify in MOS 36K as he was awarded MOS 57A (Duty Soldier) at his first permanent duty station in Germany.  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s records also show that he served in Germany from 3 December 1967 to 26 April 1968 and in Vietnam from 1 April 1969 to 13 December 1969.  His awards and decorations include the National Defense Service Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal.  His records do not show any acts of valor during his period of military service.

4.  The applicant's records reveal two periods of absence without leave (AWOL) from 1 August 1967 to 5 September 1967 and 8 November 1967 to 11 November 1967.  The facts and circumstances surrounding his return to duty and/or subsequent punishment (if any) are not available for review with this case.

5.  The applicant’s records reveal a history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 4 March 1968, for twice absenting himself from his appointed place of duty and fighting with another Soldier, on or about 1 March 1968.  His punishment consisted of reduction of private (PV1)/E-1, forfeiture of $51.00 pay for 2 months, and 30 days of correctional custody; and 

	b.  on 13 March 1968, for failing to go at the time prescribed to his appointed place of duty on three separate occasions, on or about 9, 11, and 12 March 1968.  His punishment consisted of forfeiture of $51.00 pay for 2 months and
30 days of correctional custody.

6.  On 13 April 1968, the applicant pled guilty at a Summary Court-Martial to one specification of being AWOL during the period on or about 11 April 1968 through on or about 12 April 1968.  The Court sentenced him to forfeiture of $68.00 pay for one month and confinement at hard labor for 30 days.  The sentence was adjudged and approved on 13 April 1968.  However, on 19 April 1968, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 30 days was suspended effective 22 April 1968 for 60 days.

7.  On 30 April 1968, the unexecuted portion of the applicant’s suspended sentence to confinement at hard labor for 30 days was ordered executed and the applicant was ordered confined at the Fort Riley, KS Post Stockade.  

8.  On 21 May 1968, the applicant’s immediate commander initiated a Certificate of Unfitness for Enlistment/Reenlistment (Bar to Reenlistment Certificate) citing the applicant’s habitual misconduct as evidenced by his chronic indignations to him (the immediate commander) and other superiors.  This certificate was subsequently approved on 15 June 1968. 

9.  On 19 July 1968, the applicant pled guilty at a second Summary Court-Martial to one specification of being AWOL during the period on or about 28 June 1968 to on or about 12 July 1968.  The Court sentenced him to forfeiture of $73.00 pay for one month and confinement at hard labor for 30 days.  The sentence was adjudged and approved on 19 July 1968. 

10.  The applicant’s records reveal two more instances of nonjudicial punishment under the provisions of Article 15 of the UCMJ as follows:  

	a.  on 23 October 1968, for being AWOL during the period on or about 18 October 1968 to on or about 21 October 1968.  His punishment consisted of 14 days of restriction and 14 days of extra duty; and 

	b.  on 16 January 1969, for being AWOL during the period on or about 7 January 1969 to on or about 13 January 1969.  His punishment consisted of forfeiture of $30.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.  

11.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the applicant’s records contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 15 December 1969 under the provisions of Army Regulation 635-212 (Personnel Separations) with a character of service of under conditions other than honorable.  This form also shows he completed 2 years, 4 months, and 3 days of creditable military service and had 115 days of lost time.  

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.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s entire record of service was considered and his service in Vietnam and Germany were noted.  However, nothing in the record was sufficiently mitigating to warrant an upgrade of his discharge.

2.  The applicant was 19 years and 2 months of age at the time of his enlistment and 20 years of age when he started his continuous misconduct.  There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed military service without resorting to multiple acts of misconduct.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his misconduct was the result of his age.

3.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he was mistreated during his service in Vietnam because of any physical or medical impairment during his military service.  Additionally, there is no evidence in the available records and the applicant did not provide sufficient evidence showing that his acts of indiscipline were the result of mistreatment.  

4.  The applicant's records are void of the facts and circumstances that led to his discharge.  However, the applicant's records contain a copy of his DD Form 214 which shows he was discharged with an undesirable discharge in accordance 
with Army Regulation 635-212 for unfitness.  It is presumed in this case that the applicant's discharge was in accordance with the applicable regulation and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's records reveal an extensive history of AWOL, two instances of courts-martial, a bar to reenlistment, and 4 instances of nonjudicial punishment. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

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.


															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)                                         AR20080014250



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ABCMR Record of Proceedings (cont)                                         AR20080014250



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