IN THE CASE OF:	  

		BOARD DATE:	  24 March 2009

		DOCKET NUMBER:  AR20080018424 


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 to an honorable discharge.

2.  The applicant states, in effect, that he deserves an honorable discharge because he served in the Republic of Vietnam and fought for his country.  The applicant continues that he had 2 years, 8 months, and 13 days of good service and has proven himself to be a good American citizen.

3.  The applicant provides no documentation as evidence in support of this 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 enlisted in the Regular Army on 22 April 1966.  He completed basic training and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Basic).  The applicant served a tour of duty in the Republic of Vietnam from 22 June 1967 through 6 September 1968.  The highest rank the applicant attained while serving on active duty was private (PV2)/pay grade E-2.  However, at the time of his separation he held the rank of private (PVT)/pay grade E-1.

3.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions for the following offenses:  on 3 September 1967, for being disrespectful in language to a superior noncommissioned officer; and on 13 November 1967, for wrongfully possessing 7.15 grams, more or less, of marijuana.

4.  The applicant's record also shows that he received a summary court-martial on 8 November 1968 for disobeying a lawful order.

5.  Headquarters, 2d Battalion, 320th Artillery Regiment, 1st Brigade, 101st Airborne Division, Special Court-Martial Order Number 1, dated 5 January 
1968, shows the applicant appeared before a special court-martial which convened near Bao Loc in the Republic of Vietnam for three specifications of absence without leave, three specifications of failure to obey a lawful order, and one specification of being disrespectful in language to a superior noncommis-sioned officer.  As a result, he was found guilty of all charges and specifications except one specification of absence without leave.

6.  Documentation from the Superior Court in Cumberland County in the State of North Carolina, dated 3 December 1968, shows the applicant appeared in court as the result of being charged with a civil offense.  The applicant was charged with and found guilty of assault with a deadly weapon.

7.  On 22 January 1969, the applicant’s unit commander notified him, in effect, that he was initiating action to separate him under the provisions of paragraph 33a of Army Regulation 635-206 (Misconduct - Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) due to the fact that he had been convicted by a civil court.  The unit commander also informed the applicant that he could receive an undesirable discharge certificate as a result of this action.  The unit commander continued by advising the applicant of his rights to be represented by or consult with legal counsel, to present his case before a board of officers, to submit a statement in his own behalf, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his discharge or request that his case be presented before a board of officers.  The applicant acknowledged receipt of the unit commander's notification on 29 January 1969.  The applicant also acknowledged his understanding that if he were issued a general discharge under honorable conditions or anything less, he could expect to encounter substantial prejudice in civilian life.

8.  Battery A (105 Millimeter Towed), 1st Battalion, 319th Field Artillery Regiment, Fort Bragg, North Carolina, memorandum, dated 12 February 1969, shows the applicant’s unit commander recommended him for elimination under the provisions of paragraph 33a of Army Regulation 635-206 because of civil conviction.  The applicant's commander also recommended the applicant be issued a DD Form 258A (Undesirable Discharge Certificate).  The applicant's battalion and brigade-level commanders concurred with the unit commander's recommendations.

9.  On 20 March 1969, the brigadier general exercising separation authority directed the applicant’s separation under the provisions of Army Regulation 
635-206 and that he be issued an Undesirable Discharge Certificate.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged under the provisions of Army Regulation 635-206 on 1 May 1969.  This form also shows that he received an under conditions other than honorable characterization of service and he was issued a DD Form 258A.

10.  On 23 May 1983, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) requesting an upgrade of his undesirable discharge.  The applicant's justifications for his request were, in effect, his contentions that he deserved an honorable discharge because he served in the Republic of Vietnam and fought for his country, that he was young and immature at the time of his offense, and that since that time he had proven himself to be a good husband, father, and American citizen.

11.  OSA Form 172 (Army Council of Review Boards, Case Report and Directive), dated 10 August 1984, shows the Army Discharge Review Board (ADRB) reviewed the applicant's discharge action and determined that he was properly discharged.  The board also reviewed the applicant's overall military personnel records and determined that his discharge was equitable.  Following deliberation, the board voted unanimously to deny relief.

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action had been taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.

13.  Army Regulation 635-200 (Enlisted Separations), 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.

14.  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's contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  The record shows that the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.

3.  The applicant's record shows that he was tried and convicted by the Superior Court of Cumberland County in the State of North Carolina for assault with a deadly weapon.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  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.  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 rendered his service unsatisfactory.  Therefore, he is not entitled to upgrade of his discharge to an honorable discharge or to a general, under honorable conditions, discharge.

6.  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 any evidence that would satisfy this requirement and there is no basis for granting his request.

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)                                         AR20080018424



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ABCMR Record of Proceedings (cont)                                         AR20080018424



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