IN THE CASE OF:	  

		BOARD DATE:	       10 March 2009

		DOCKET NUMBER:  AR20080018643 


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, upgrade of his under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states, in effect, he did not receive any pay for two and one half months; he wanted to be sent to Texas, but was sent to Fort Ord, California; and he never received any counseling when he returned to the United States.  He also states he received a shrapnel wound from a grenade and had a brace on his left leg; he could not walk and was on light duty as day room orderly when he was discharged; and his leg has never healed.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of
3 September 1968.

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 military personnel records show he was inducted into the Army of the United States and entered active duty for a period of 24 months on
7 April 1966.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).  The applicant’s records show he served in the Republic of Vietnam (RVN) from 26 September through 2 December 1966.

3.  The applicant's military personnel records contain a copy of a Headquarters, U.S. Army Vietnam, message, date-time-group 301447Z October 1966, that shows the applicant sustained a gunshot wound to his left leg at 0200 hours on 29 October 1966 while on perimeter defense and engaged in a fire fight with hostile forces in the RVN.

4.  The applicant’s military personnel records contain a copy of Headquarters,
U.S. Army Combat Developments Command, Experimentation Command, Fort Ord, California, Special Court-Martial Order Number 37, dated 16 June 1967, that shows the applicant was charged with violation of the Uniform Code of Military Justice (UCMJ), Article 86, with the specification that he did, on or about 20 March 1967, without proper authority, absent himself from his unit, to wit:  Headquarters, Headquarters and Service Battery, 5th Battalion (Composite), 78th Artillery, located at Fort Ord, California, and did remain so absent until on or about 12 May 1967.  The following actions were taken:

     a.  The applicant entered a plea of guilty to the specification and charge and was found guilty of the specification and charge.

     b.  On 5 June 1967, the sentence was adjudged.  The applicant was sentenced to confinement at hard labor for 3 months, a forfeiture of $64.00 per month for 3 months, and to be reduced to the grade of Private (E-1).  No previous convictions were considered.

     c.  On 16 June 1967, the convening authority approved only so much of the findings of guilty of the charge and its specification that the applicant did, on or about 20 March 1967, without proper authority, absent himself from his unit, to wit:  Headquarters, Headquarters and Service Battery, 5th Battalion (Composite), 78th Artillery, located at Fort Ord and did remain so absent until on or about 
19 April 1967.  The convening authority approved only so much of the sentence as provided for confinement at hard labor for 2 months, a forfeiture of $64.00 per month for 2 months, and reduction to the grade of Private (E-1) and ordered the sentence duly executed.  The applicant was to be confined in the Post Stockade at Fort Ord and the confinement served therein or elsewhere as competent authority may direct.

5.  The applicant's military personnel records contain an AH Form 136 (Fort Ord, California, Interim Physical Profile Record), dated 15 November 1967, that shows the applicant was issued a temporary physical profile for a period of 3 months based on an old gunshot wound to his left leg.  This temporary physical profile shows the following limitations for the applicant:  no crawling, stooping, running, jumping, prolonged standing or marching, and no strenuous physical activity.

6.  The applicant’s military personnel records contain a copy of Headquarters,
U.S. Army Combat Developments Command, Experimentation Command, Fort Ord, California, Special Court-Martial Order Number 114, dated 29 November 1967, that shows the applicant was charged with violation of the UCMJ, Article 86, with the specification that he did, on or about 11 September 1967, without proper authority, absent himself from his unit, to wit:  Headquarters, Headquarters and Service Battery, 5th Battalion (Composite), 78th Artillery, located at Fort Ord, and did remain so absent until on or about 11 October 1967; and the additional charge of violation of the UCMJ, Article 86, with the specification that the applicant did, on or about 16 October 1967, without proper authority, absent himself from his unit, to wit:  Headquarters, Headquarters and Service Battery, 5th Battalion (Composite), 78th Artillery, located at Fort Ord, California, and did remain so absent until on or about 22 October 1967.  The following actions were taken:

     a.  The applicant entered a plea of guilty to all specifications and charges and was found guilty of all specifications and charges.

     b.  On 9 November 1967, the sentence was adjudged.  The applicant was sentenced to confinement at hard labor for 4 months, to a forfeiture of $64.00 per month for 4 months, and to be reduced to the grade of Private (E-1).  No previous convictions were considered.

     c.  On 29 November 1967, the convening authority approved the sentence and ordered the sentence duly executed.  The applicant was to be confined in the Post Stockade, Fort Ord, California, and the confinement served therein or elsewhere as competent authority may direct.

7.  The applicant’s military personnel records contain a copy of Headquarters,
U.S. Army Combat Developments Command, Experimentation Command, Fort Ord, California, Special Court-Martial Order Number 124, dated 22 December 1967, that shows the unexcuted portion of the sentence to confinement at hard labor for 4 months, in the applicant’s case, adjudged on 9 November 1967 and promulgated in Special Court-Martial Order Number 114, dated 29 November 1967, not subsequently modified, was suspended until 8 March 1968, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement at hard labor was to be remitted without further action.

8.  The applicant’s military personnel records contain a copy of Headquarters,
U.S. Army Garrison Troops, Fort Hood, Texas, Special Court-Martial Order Number 536, dated 16 May 1968, that shows the applicant was charged with violation of the UCMJ, Article 86, with the specification that he did, on or about 
20 January 1968, without proper authority, absent himself from his unit, to wit:  Company D, Forty-First Infantry, located at Fort Ord, and did remain so absent until on or about 3 May 1968.  The following actions were taken:

     a.  The applicant entered a plea of guilty to the specification and charge and was found guilty of the specification and charge.

     b.  On 16 May 1968, the sentence was adjudged.  The applicant was sentenced to confinement at hard labor for 3 months and a forfeiture of $60.00 pay per month for 3 months.  No previous convictions were considered.

     c.  On 16 May 1968, the convening authority approved the sentence and ordered the sentence duly executed, but the execution of that portion thereof adjudging confinement for 3 months was suspended, for 3 months, at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action, or it would be remitted upon the accused’s date of discharge from the service, whichever date occurred sooner.

9.  On 5 August 1968, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6a, for unfitness.  The reasons for the proposed separation action were an established pattern for shirking and continuous absence from duty.  The applicant was also advised of his rights.

10.  On 8 August 1968, having been advised by military counsel of the basis for the contemplated separation action and its effects, and the rights available to him, the applicant waived representation by counsel and elected not to submit statements in his own behalf.

11.  On 8 August 1968, the company commander reviewed the applicant’s choices pertaining to the rights available to him and, based on the circumstances surrounding the applicant’s case, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-212, paragraph 6a(4), for unfitness because of his continuous absence without leave (AWOL).  The commander added that the applicant performs his duties while under strict supervision, but has very poor initiative and lacks all sense of responsibility.

12.  On 12 August 1968, the battalion commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-212, paragraph 6a(4), for unfitness.

13.  On 16 August 1968, the brigade commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-212, paragraph 6a(4), for unfitness.

14.  The applicant's military personnel records contain a DA Form 3082-R (Statement of Medical Condition), dated 30 August 1968, that shows the applicant’s last separation medical examination was on 31 July 1968 and that he indicated there had been no change in his medical condition.

15.  On an unspecified date, the major general serving as the General Court-Martial Convening Authority and the authorized separation authority in the applicant’s case, approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-212, paragraph 6a(4), for unfitness.  The separation authority also directed the applicant be discharged under other than honorable conditions and issued a
DD Form 258A (Undesirable Discharge Certificate).  Accordingly, the applicant was discharged on 3 September 1968.

16.  The applicant's military personnel records contain his DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212, Separation Program Number (SPN) “386” with service characterized as under conditions other than honorable, and he was issued a DD Form 258A effective 
3 September 1968.  At that time the applicant had completed 1 year, 6 months, and 20 days of net service this period and 1 year, 6 months, and 20 days of total active service.

17.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.


18.  The applicant’s military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 28 October 1969, that shows the applicant requested an upgrade of his under other than honorable conditions discharge to a general discharge.  On 24 June 1970, the Army Discharge Review Board, after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant was properly discharged.  Accordingly, the applicant was notified that his request was denied.

19.  Army Regulation 635-212, in effect at the time of the applicant's separation from active duty, provided procedures and guidance in the elimination from the service of enlisted personnel who were found to be unfit or unsuitable for further military service.  Paragraph 6 (Applicability) states that an individual is subject to separation under the provisions of this regulation when one or more of the conditions exist and subparagraph 1 (Unfitness) includes, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.

20.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.   Section
III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph
31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN."  

21.  Army Regulation 635-5-1 (SPN Codes), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  The SPN of “386” is identified as the appropriate code to assign enlisted Soldiers discharged for unfitness based on an established pattern of shirking.

22.  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.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded to an under honorable conditions discharge because he did not receive any pay for two and one half months; he never received any counseling when he returned to the United States; he could not walk and his leg never healed; however, he was discharged.

2.  The evidence of record shows the applicant sustained a gunshot wound to his left leg on 29 October 1966 in the RVN and he was returned to the United States in December 1966.  The evidence of record also shows that the applicant was issued a temporary physical profile on 15 November 1967 for a period of 
3 months (until 15 February 1967) based on an old gunshot wound to his left leg.  This temporary physical profile limited the applicant from crawling, stooping, running, jumping, prolonged standing or marching, and strenuous physical activity.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he could not walk.

3.  The evidence of record shows that on 31 July 1968 the applicant underwent a separation medical examination and, on 30 August 1968, he confirmed there had been no change in his medical condition that would preclude his separation from active duty.  Thus, the applicant provides insufficient evidence to show his leg never healed or that his administrative discharge from the Army was improper.

4.  The evidence of record shows that the company commander notified the applicant of his intent to initiate separation action against him and that the applicant was advised of his rights.  The evidence of record also shows the applicant was advised by military counsel of the basis for the contemplated separation action and its effects, and the rights available to him; however, the applicant waived representation by counsel.  

5.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

6.  During the period of service under review, the applicant’s records show he was convicted by special courts-martial on three occasions.  The evidence of record also shows that, as a result of these three convictions, the applicant was sentenced, in pertinent part, to a forfeiture of a total of 9 months pay.  Thus, the applicant’s contention that he did not receive any pay for two and one half months is supported by the sentences imposed as a result of his special court-martial convictions and, therefore, does not demonstrate an error.  In addition, the applicant provides insufficient evidence to show that any of the special court-martial convictions were improper or unjust.  In fact, the applicant pled guilty to the charge(s) and specification(s) on all three occasions.  Thus, the evidence of record clearly shows the applicant’s overall quality of service during the period of service under review was not satisfactory.  Therefore, in view of all of the foregoing, the applicant is not entitled to a general discharge under honorable conditions.

7.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20080018643



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ABCMR Record of Proceedings (cont)                                         AR20080018643



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