IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20090000148 


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 a discharge under honorable conditions (General Discharge). 

2.  The applicant states that his undesirable discharge seems harsh after having served in Vietnam as an infantryman and it was inequitable because it was based on his being absent without leave (AWOL).

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was born on 9 December 1951 and enlisted in the Regular Army in Detroit, Michigan on 24 March 1971 for a period of 2 years.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training (AIT) as a light weapons infantryman before being transferred to Vietnam on 23 August 1971.  He was advanced to the pay grade of E-3 on the date of his arrival in Vietnam.  He departed Vietnam on 15 June 1972 and was transferred to Fort Riley, Kansas.

3.  On 11 October 1972, nonjudicial punishment (NJP) was imposed against the applicant for behaving with disrespect towards a superior commissioned officer.  His punishment consisted of a reduction to the pay grade of E-2 and extra duty for 14 days.

4.  On 27 October 1972, the applicant was reassigned as a rehabilitative transfer to another company at Fort Riley.

5.  On 1 December 1972, the applicant pled guilty in the Wayne County, Michigan Circuit Court, to the crime of assault (with a pistol) with intent to do great bodily harm less than murder and was sentenced to serve a period of not less than 2 1/2 years of imprisonment.  The maximum imprisonment for the offense was 10 years.  He was given 2 days of time served in the Wayne County Michigan jail.  He remained in the control of civil authorities from that date forward.

6.  On 20 March 1973, the applicant's commander initiated action to separate him from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) based on his conviction by civil authorities.  The applicant was provided the notification and refused to acknowledge his notification or to submit a statement in his own behalf.

7.  The appropriate authority (a major general) approved the recommendation on 22 May 1973 and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged in absentia with an undesirable discharge on 1 June 1973, under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  He had served 1 year, 8 months and 5 days of total active service and had 183 days of lost time due to civil confinement.



9.  On 16 August 1973, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and contended that his discharge was unjust because he was not present at the discharge and that he had received no legal counseling, despite the fact that he had never been court-martialed and had served a tour in Vietnam.  On 10 April 1974, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request for an upgrade of his discharge.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  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.  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.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

4.  The applicant’s contentions have been noted.  However, given the seriousness of his offenses and his overall record of service, they are not sufficiently mitigating to warrant an upgrade of his 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.



      ________XXX________________
               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)                                         AR20090000148



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ABCMR Record of Proceedings (cont)                                         AR20090000148



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