IN THE CASE OF:	  

		BOARD DATE:	  	  21 April 2009

		DOCKET NUMBER:  AR20090000292 


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 discharge be upgraded to obtain Department of Veterans Affairs (VA) benefits.

2.  The applicant states, in effect, that he served in Vietnam for 6 months when he was wounded.  He received the Purple Heart and the Bronze Star Medal and was stretchered back to the U.S. and admitted to Madigan Hospital.  After several months of hospitalization he was sent back to active duty at Fort Bragg, North Carolina, and went through retraining and started using drugs.  He was sent to Fort Carson, Colorado, and was arrested for drugs and sent to Lompoc Prison.  He adds that he served his country honorably and was seriously injured in the line of duty and awarded medals for his service.  He states he had no drug use prior to Vietnam and he believes that he should be eligible for VA benefits.

3.  The applicant provides no additional evidence 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 enlisted and entered the Regular Army on 5 November 1968 for a period of 3 years.  After completing basic training and advanced individual training, the applicant was awarded military occupational specialty 11B (Light Weapons Infantryman).  The applicant attended airborne training at Fort Benning, Georgia, and in July 1969 he was assigned to a unit at Fort Bragg, North Carolina.

3.  On 8 September 1969, the applicant received non judicial punishment (NJP) for failure to go to his appointed place of duty.  His imposed punishment was a forfeiture of $26.00 pay.

4.  On 23 October 1969, the applicant received NJP for failure to report on 4 October 1969 for his overseas shipment at the overseas replacement station.  The applicant did not report until 21 October 1969.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $25.00 pay, and 14 days of restriction to the transient company or until shipment.

5.  On or about 27 October 1969, the applicant arrived in Vietnam.  On 5 December 1969, the applicant sustained multiple fragment wounds as a result of throwing a dud M-79 grenade round into a grenade pit.  A line of duty investigation was conducted and the incident was found to be in the line of duty.  The applicant was medically evacuated in December 1969.  After 3 weeks of convalescent leave, the applicant was returned to duty on 21 January 1970.  The applicant was reassigned to the 82d Airborne Division.

6.  On 16 April 1970, while assigned to a unit at Fort Lee, Virginia, the applicant received NJP for two incidents of failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-3.

7.  On 7 August 1970, while assigned to a unit at Fort Bragg, North Carolina, the applicant received NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was 7 days of restriction.

8.  On 23 September 1970, the applicant received NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-2.

9.  On 11 January 1971, the applicant was convicted by a special court-martial of being absent without leave from on or about 12 October 1970 to 20 November 1970.  He was sentenced to confinement at hard labor for 6 months (suspended for 6 months), a reduction to pay grade E-1, and a forfeiture of $100.00 pay per month for 6 months.  On 23 March 1971, the suspended portion of the sentence to confinement at hard labor for 6 months was vacated and the unexecuted portion of the sentence to confinement at hard labor for 6 months was duly executed.

10.  On 27 September 1971, the applicant was apprehended for attempting to sell narcotics to Federal/Criminal Investigation Command agents in the company area.

11.  On 28 April 1972, the United States District Court, Denver, Colorado, tried and convicted the applicant for the unlawful distribution of heroin and aiding and abetting.  He was sentenced to a Federal correctional institute for an indefinite period.

12.  In June 1972, the unit commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) due to a conviction by a civil court.  On 2 June 1972, the applicant was advised by legal counsel of the basis for the contemplated action.  Having been advised of his rights, the applicant requested to appear before a board of officers with legal counsel.

13.  On 28 November 1972, the board of officers convened to determine whether he should be discharged because of his conviction by a civil court before the expiration of his term of service.  On 13 December 1972, the board found the applicant undesirable for further retention in the military service because of his conviction by a civil court.  In view of the findings, the board of officers recommended that the applicant be discharged from the service because of his conviction by a civil court with the issuance of an Undesirable Discharge Certificate.

14.  On 19 March 1973, the commanding general approved the recommendation, reduced the applicant to the lowest enlisted grade, and directed that the applicant be discharged under the provisions of Army Regulation 635-206 by reason of misconduct (civil conviction) with an Undesirable Discharge Certificate.

15.  The DD Form 214 (Armed Forces of The United States Report of Transfer or Discharge) issued to the applicant upon his separation shows that on 22 May 1973 the applicant was discharged in pay grade E-1 with a discharge under conditions other than honorable.  He had completed 2 years, 6 months, and 12 days of creditable active service with over 24 months of time lost.  His DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal with Device (1960), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and the Marksman Marksmanship Qualification Badge with Rifle (M-16) and Machine Gun (M-60) Bars.

16.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.

17.  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.

18.  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 contentions that his discharge should be upgraded because he served his country honorably, that he was seriously injured in the line of duty in Vietnam, that he was awarded medals for his service, and that he did not use drugs prior to Vietnam was carefully considered and found to be insufficient in evidence.

2.  The evidence of record shows that the applicant served less than 2 months in Vietnam from 27 October 1970 until he was seriously injured on 5 December 1969 and medically evacuated out of Vietnam.  There is no evidence of drug abuse during his short tour of duty in Vietnam.

3.  Although, the applicant's record show that he was tried and convicted by civil court of the unlawful distribution of heroin, there is no evidence in his official military personnel file and the applicant did not provide any evidence that indicates that he was ever treated for drug addiction or that he tried to get help for his drug addiction.

4.  The evidence of record also reveals that the applicant had a record of disciplinary infractions prior to the civil conviction which ultimately led to his discharge.  Therefore, it is concluded that his discharge accurately reflects his overall record of service.

5.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service for that period of service.

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.

7.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20090000292



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000292



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1