IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20080017533 


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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, he believes his discharge was unjust.   

3.  The applicant provides third-party statements; commanders' statements; dated 31 October 1982 and 4 April 1982; and employers' statements, dated         4 April 1977, 23 October 1986, and 6 September 1979, 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 record shows that he enlisted in the Regular Army and entered active duty on 12 June 1968.  He was trained in and awarded military occupational specialty (MOS) 68G (Air Frame Repairer), and specialist four (SP4) is the highest rank he attained while serving on active duty.  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 25 April 1969 through 31 January 1970.  Item 41 (Awards and Decorations) shows that during his active duty tenure he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal with Device (1960), 1 Overseas Service Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  The applicant's disciplinary record includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions.  It also shows that he was formally counseled by members of his chain of command for various infractions related to his behavior, inability to perform military duties, and his unsatisfactory conduct on 12 separate occasions between 8 November and 18 December 1969.  

5.  On 3 December 1969, the applicant accepted NJP for his failure to obey a lawful order on 1 December 1969.  His punishment for this offense was a reduction to private first class (PFC).  

6.  On 9 December 1969, the applicant accepted NJP for absenting himself from his unit without proper authority on 6 December 1969, and for failing to obey a general regulation on curfew and off limits instructions on 6 December 1969.  His punishment for these offenses was 14 days of extra duty. 

7.  On 16 January 1970, the applicant accepted NJP for two specifications of absenting himself from his place of duty without proper authority on 13 January 1970 and on 14 January 1970.  His punishment for these offenses was 14 days of extra duty.  

8.  On 28 January 1970, the unit commander notified the applicant of his intent to recommend the applicant be separated under the provisions of Army Regulation 635-212 with a GD.  The unit commander cited the applicant's perfidious characteristics and associated unsatisfactory conduct and efficiency since assignment to the unit as the basis for taking the action.  



9.  On 28 January 1970, the applicant consulted with counsel and was advised of the basis for the contemplated separation, of its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  

10.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, by reason of unsuitability (erroneously indicating character and behavior disorder (Separation Program Designator (SPD) code 264)) and directed the applicant receive a GD.  

11.  On 3 February 1970, the applicant was separated with a GD.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he held the rank of PV2 and that he completed a total of 1 year, 7 months, and 22 days of active military service.  It also shows that during his active duty tenure, he earned the NDSM, RVNCM, VSM, 1 Overseas Service Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

12.  On 6 May 1982, after carefully reviewing the applicant's entire record of military service and the issues and evidence he presented in his application, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.  

13.  The ADRB did direct an administrative correction that changed the authority for the applicant's discharge to paragraph 13-4a, Army Regulation 
635-200 (SPD JMD), and the reason for his separation to Unsuitability (Inapititude), as was originally recommended by the applicant's unit commander and a correction to the applicant's DD Form 214 (DD Form 215).   

14.  The applicant provides five third-party statements from individuals and employers who attest to his good work habits and character.  He also provides two letters from Army National Guard commanders, dated in 1982, which attesting to his good qualities as a Soldier.  

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability and unfitness.  The regulation provided, in pertinent part, that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively, alcoholism, and enuresis.  A general under honorable conditions characterization of service was normally appropriate.
On 23 November 1972, the authority for unsuitability discharges was transferred to chapter 13, Army Regulation 635-200.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust based on his overall record of service was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Although the applicant's post-service conduct is noteworthy, as evidenced by the third-party statements and ARNG commanders' letters he provided, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.  

4.  The applicant's record reveals an extensive disciplinary history and a record of unsatisfactory performance in his unit in the RVN.  This record of misconduct and poor duty performance clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge.  Notwithstanding the original administrative error made in the reason for separation, which was ultimately corrected by the ADRB, there is no evidence of injustice in the separation process that resulted in the applicant being denied any rights or due process.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief at this late date.  

5.  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 this requirement.

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)                                         AR20080017533



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ABCMR Record of Proceedings (cont)                                         AR20080017533



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