IN THE CASE OF:	  

		BOARD DATE:	        23 October 2008

		DOCKET NUMBER:  AR20080014483 


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 has been ashamed all these years of what happened.

3.  The applicant provides a self-authored letter, dated 8 July 2008 (and also dated 15 August 2008) 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 he enlisted in the Texas Army National Guard (TXARNG) for a period of 3 years on 13 November 1962.  He subsequently entered active duty on 21 January 1963, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 31M (Radio Relay and Carrier Operator).  He was honorably released from active duty to the control of his ARNG unit on 20 July 1963.

3.  The applicant's records further show he enlisted in the Regular Army for a period of 3 years on 9 January 1964.  He subsequently executed a series of reenlistments to include three 6-year reenlistments on 26 March 1965, 17 December 1969, and 19 September 1970.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

4.  The applicant's records also show he served in the Republic of Vietnam from 20 January 1964 to 6 February 1965, 11 September 1965 to 15 September 1966, 25 October 1967 to 24 October 1968, and 19 January 1971 to 4 December 1971. He also served in Germany from 13 November 1966 to 13 September 1967, 7 December 1968 to 12 October 1970, and 5 March 1974 to 15 October 1975.

5.  The applicant's records show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, five Overseas Service Bars, the Good Conduct Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

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

	a.  on 21 January 1971, for being absent without leave (AWOL) during the period on or about 12 December 1970 through on or about 13 January 1971.  His punishment consisted of reduction to specialist four (SP4)/E-4;

	b.  on 8 August 1974, for being disorderly, on or about 3 July 1974.  His punishment consisted of 30 days of extra duty;

	c.  on 7 October 1974, for twice failing to go at the time prescribed, to his appointed place of duty, on or about 9 September 1974 and on or about 16 September 1974.  His punishment consisted of reduction to SP4/E-4 and a forfeiture of $259.00 pay for 2 months.  On 11 October 1974, the applicant appealed his punishment, and on 18 November 1974, the commander 8th Infantry Division granted the applicant’s appeal in part and ordered only so much of the punishment as pertained to reduction to SP4/E-4 approved and duly executed; and



	d.  on 8 April 1975, for striking a German female in the face, on or about 23 February 1975.  His punishment consisted of reduction to private (PVT)/E-1, a a forfeiture of $172.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty.  On 10 April 1975, the applicant appealed his punishment and on 2 May 1975, the Commander 8th Infantry Division denied his appeal.  On 15 May 1972, the punishment consisting of a forfeiture of $172.00 pay per month for 2 months imposed on 8 April 1975 was set aside and all rights and privileges affected were restored.  

7.  The facts and circumstances of the applicant's discharge are not available for review with this case; however, the DD Form 214 he was issued on 15 October 1975 shows he was discharged under the provision of paragraph 13-5A(1) of Army Regulation 635-200 (Personnel Separations) for unfitness, with a character of service of under conditions other than honorable.  This form further shows he completed a total of 12 years, 2 months, and 6 days of creditable military service and he had 31 days of lost time.

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

9.  In his self-authored letter, dated on 8 July 2008, the applicant gives a snapshot of his military background, his combat tours in the Republic of Vietnam, and the circumstances that led to him being AWOL in 1970.  He further adds that after his third tour in Vietnam he was reassigned to Germany where he was married and took his family on leave back to the United States.  However, when he returned to Germany, his wife refused to go back with him and wanted him out of the Army.  He spoke with his commanding officer about the situation and was told he (the commander) would try to get him an honorable discharge.  He goes on to say that one night he was told he was going home and was given an envelope with instructions not to open it until he arrived in New Jersey.  When he opened the envelope, he found out that his discharge was undesirable and when he got home, he discovered that his wife and kids were gone.  He concludes that he has lived in disgrace long enough and would like his discharge upgraded.

10.  AR 635-200, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 13-5A of the regulation provided, in pertinent part, 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.

11.  Army Regulation 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  Army Regulation 635-200, 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 contends that his discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged in accordance with the provisions of AR 635-200, for unfitness with an undesirable discharge.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  It is also presumed 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.

3.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  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 either a general or an honorable 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.



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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)                                         AR20080014483



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ABCMR Record of Proceedings (cont)                                         AR20080014483



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