IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080015584 


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 was convicted of selling drugs shortly after returning from Vietnam in 1969 and was incarcerated for 21 months.  Upon his release, he was discharged from the Army with an undesirable discharge.  Since then he has led an exemplary life and contributed to this nation in many ways.  The applicant states he has tried to do everything right in his life to ensure that he did not make the same mistakes.

3.  The applicant continues that his life changed in March 2007 when his son was killed while performing a mission for Homeland Security while assigned to the U.S. Coast Guard and one year later his father, who was a World War II veteran, passed away.  Since then he took notice on what he needed to do.  The applicant states, "I remember the exact moment I received my Combat Infantryman Badge and how proud I was to wear it.  I want to have that moment back again and not be penalized for one stupid mistake or error in judgment when I returned from Vietnam."

4.  The applicant provides no additional documentation in support of this case.

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 the Regular Army on 8 July 1968.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  On 1 October 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for not being at his appointed place of duty.

4.  The applicant arrived in Vietnam and was assigned to Company A, 2d Battalion, 35th Infantry, 4th Infantry Division, on 10 December 1968.  He departed Vietnam on 9 December 1969.

5.  Evidence of record shows that the applicant was confined by civil authorities from 26 May 1970 through 16 July 1972.

6.  On or about October 1972, the applicant accepted NJP under Article 15, UCMJ, for misconduct.

7.  On 2 March 1973, the applicant accepted NJP under Article 15, UCMJ, for failure to be at his appointed place of duty and three counts of disobeying a lawful order.

8.  A DD Form 458 (Charge Sheet), dated 6 June 1973, shows court-martial charges were preferred against the applicant for being absent without leave (AWOL) for the period 27 March 1973 through 22 May 1973.

9.  On 8 June 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

11.  The applicant submitted a statement on his own behalf stating, in effect, that he joined the Army to help his country in a time of war.  He completed basic and advanced individual training.  While in Vietnam, he was awarded numerous individual and unit awards for valor and service.  When he returned from Vietnam, he was arrested for conspiracy, sale and possession of a dangerous drug.  He was convicted and sentenced to 3 to 6 years in the Colorado State Penitentiary.  He served 26 months and was released on good behavior.

12.  The applicant stated that he was an excellent Soldier up until he was released from confinement.  Following his release, he was constantly harassed by noncommissioned officers and officers who would not let him forget that he was an ex-convict.  The applicant states that he went AWOL to see his family because his requests for leave were denied.  He wanted out of the Army and was tired of playing games with people in the service.

13.  On 9 July 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 9 July 1973, the applicant was discharged with an undesirable discharge.  He completed a total of 2 years, 8 months, and 14 days of creditable active service with 840 days of lost time due to AWOL and confinement.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 14 October 1976, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.

16.  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.

17.  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.  It is unfortunate that the applicant has faced difficulties with the recent passing of his son and father and the Board acknowledges that his post-service conduct is noteworthy.  However, good post service conduct alone is not a basis for upgrading a discharge and, upon review, the good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

2.  The applicant's records show that he received three Article 15s, had one instance of being AWOL, and had one instance of civil confinement and conviction during his last enlistment, in addition to the offenses for which he was discharged.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20080015584



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ABCMR Record of Proceedings (cont)                                         AR20080015584



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