IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090002224 


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 the character of service of his discharge from under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states, in effect, when he (and others) were sent to Vietnam they were told they were advisors, but they were not told they would be shot at or captured by the Viet Cong.  He also states that he was captured and held as a prisoner of war (POW) in Vietnam for almost 3 months in 1962.  The applicant adds that he has nightmares and flashbacks about the torture he suffered (i.e., "bamboo shoots under [his] nails then lit on fire").  He states that the Navy Seals rescued him (and others); he was shipped back to San Francisco, California, and began drinking every night to try to escape the horror.  He also states that he was put in the stockade, the memories were too much for him, and he escaped and went absent without leave (AWOL).  The applicant concludes by requesting the character of his service be revisited based on the circumstances so that he may reopen his service-connection claim for hearing loss and tinnitus.

3.  The applicant provides a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 30 December 2008, and Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 30 December 2008.


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 contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 10 April 1961.  This document shows the applicant enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 13 October 1958 and that he was awarded military occupational specialty (MOS) 131.10 (Armor Crewman).  The applicant was honorably discharged on 10 April 1961 for the purpose of his immediate enlistment in the RA.  At the time, he had completed 2 years, 5 months, and 28 days of net active service this period and total active service.  The DD Form 214 does not show any evidence of foreign service.

3.  The applicant reenlisted in the RA for a period of 6 years on 11 April 1961.

4.  The applicant’s military records contain a DA Form 24 (Service Record).

   a.  Section 5 (Service Outside Continental United States) shows the applicant departed Hampton Roads, Virginia, on 10 October 1961; arrived in Bremerhaven, Germany on 20 October 1961; departed Rhein-Main, Germany, on 22 December 1961; arrived at Idlewild, New York, on 23 December 1961 (for ordinary leave); departed Idlewild, New York on 19 January 1962; arrived in Rhein-Main, Germany, on 21 January 1962; departed Bremerhaven, Germany, on 26 September 1963; and arrived at Fort Hamilton, New York, on 4 October 1963.

   b.  Section 4 (Chronological Record of Military Service), in pertinent part, shows the applicant was assigned to Company D, 4th Medium Tank Battalion, 68th Armor, Germany, from 20 October 1961 to 24 September 1963.  This item also shows the applicant departed Germany on 25 September 1963 en route to the continental United Stated and he was assigned to Headquarters Company, 6th U.S. Army Special Troops, Presidio of San Francisco, California, from 14 November 1963 to 31 January 1965.
   c.  Section 6 (Time Lost Under Section 6(a), appendix 2b, Manual for Courts-Martial (1951) and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was confined for 62 days from 1 December 1964 to 31 January 1965, AWOL for 9 days from 1 February 1965 to 9 February 1965, confined for 20 days from 10 February to 1 March 1965, and confined by civil authorities for 38 days from 2 March 1965 to 8 April 1965.

5.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 15 June 1962, that shows the Commander, 4th Medium Tank Battalion, 68th Armor, Germany, preferred charges against the applicant, in that he did:

   a.  assault Staff Sergeant (SSG\E-6) Donald K. S____, his superior noncommissioned officer (NCO), who was then in the execution of his office, by drawing a spring-loaded knife in a menacing manner at Mannheim-Sandhofen, Germany, on or about 0037 hours, 10 June 1962;

   b.  having received a lawful order from SSG Donald K. S____, his superior NCO, to hold down the noise and go to bed, did willfully disobey the same at Mannheim-Sandhofen, Germany, on or about 0037 hours, 10 June 1962; and

   c.  was incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor at Mannheim-Sandhofen, Germany, on or about 1300 hours, 13 June 1962.

6.  The applicant’s military personnel records contain a DA Form 26 (Record of Court-Martial Conviction).  This document shows, in pertinent part, that Headquarters, 4th Medium Tank Battalion, 68th Armor, Germany, Summary Court-Martial Order Number 26 (1962), announced that the applicant was found guilty of violation of Articles 91 and 134, Uniform Code of Military Justice (UCMJ).  This document also shows he was sentenced to reduction to the grade of specialist four/pay grade E-4, 45 days of restriction to the limits of the company area, and forfeiture of $75.00 per month for 1 month.  The sentence was adjudged and approved on 28 June 1962.

7.  The applicant’s military personnel records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 5 March 1964.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for conducting himself in a disorderly manner at #### Sunnydale Avenue, San Francisco, California, on or about 27 February 1964, causing his wife to notify the city police.  His punishment consisted of 14 days of restriction to the company area.

8.  The applicant’s military personnel records contain a DA Form 2627-1, dated 10 August 1964.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for failing to pay a just debt at Presidio of San Francisco, California, on or about 15 July 1964, after having been counseled and provided with a reasonable payment plan to which he did not respond.  His punishment consisted of forfeiture of $38.00 (7 days of pay) and 14 days of restriction to the company area.

9.  The applicant’s military personnel records contain a copy of Headquarters, Presidio of San Francisco, California, Special Court-Martial Order Number 324, dated 18 December 1964.  This document shows the following charges, specifications, pleas, findings, and sentence pertaining to the applicant.

	a.  Charge I, violation of the UCMJ, Article 91, with the specification that the applicant was disrespectful in language toward Sergeant Fred W. B____, his superior NCO, who was then in the execution of his office, by saying to him "Sergeant, I don’t care what the ____ ___ ___," or words to that effect at the Presidio of San Francisco, California, on or about 5 November 1964.

	b.  Charge II, violation of the UCMJ, Article 86, Specification 1, that the applicant failed to go at the time prescribed to his appointed place of duty without proper authority, to wit:  the prescribed shift of duty in the mess hall, at the Presidio of San Francisco, California, on or about 5 November 1964; Specification 2, that the applicant failed to go at the time prescribed to his appointed place of duty without proper authority, to wit:  the prescribed unit training, at the Presidio of San Francisco, California, on or about 20 November 1964; and Specification 3, that the applicant failed to go at the time prescribed to his appointed place of duty without proper authority, to wit:  the prescribed shift of duty in the Mess Hall, at the Presidio of San Francisco, California, on or about 23 November 1964.

	c.  Charge III, violation of the UCMJ, Article 134, Specification  1, that, in San Francisco, California, on or about 2230 hours, 30 November 1964, the applicant was drunk in a public place, to wit:  Divisadero and Lombard Street, San Francisco, California; and Specification 2, in that the applicant did wrongfully and dishonorably fail to pay said debt to Household Finance Corporation in the sum of $360.00 for which amount became due and payable at the Presidio of San Francisco, California, on or about 17 August 1963.

	d.  The applicant pled guilty to all specifications and the charges and he was found guilty of all specifications and the charges.

	e.  The applicant’s sentence was to be confined at hard labor for 6 months and to forfeit $75.00 pay per month for 6 months (one previous conviction considered).  The sentence was adjudged on 17 December 1964.

	f.  On 18 December 1964, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 6 months and forfeiture of $48.00 pay per month for 6 months and ordered the sentence duly executed.  The convening authority also ordered the applicant be confined in the Post Stockade, Presidio of San Francisco, California, and the confinement served therein or elsewhere as competent authority may direct.

10.  The applicant’s military personnel records contain a DD Form 616 (Report of Return of Absentee, Escaped Prisoner Sentenced to Discharge, and/or Request for Service Record and Allied Papers) that shows the applicant was dropped from the rolls as a deserter on 1 February 1965 and returned to military control on 10 February 1965 to the Special Processing Detachment, Presidio of San Francisco, California.

11.  The applicant’s military personnel records are absent a copy of his separation packet.

12.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Personnel Center, Oakland, California, Special Orders Number 98, dated 8 April 1965.  The orders show, in pertinent part, that the applicant was discharged for unfitness under other than honorable conditions with the separation program number (SPN) 28B and issued a DD Form 258A (Undesirable Discharge Certificate).

13.  The applicant’s military personnel records contain a DD Form 214 with an effective date of 8 April 1965.  This document shows the applicant was discharged from the RA with service characterized as under other than honorable conditions in accordance with the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character), SPN 28B.  Item 32 (Remarks) of the DD Form 214, in pertinent part, shows that the applicant had 129 days lost under Title 10, U.S. Code, section 972, from 1 December 1964 through 8 April 1965.  The DD Form 214 also shows that the applicant was discharged on 8 April 1965.  At the time he had completed 3 years, 7 months, and 19 days of net active service during the period under review and was issued a DD Form 258A.

14.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Personnel Center, Oakland, California, letter, dated 16 April 1965, subject:  Discharge in Absentee Status.  This document shows the second lieutenant serving as Assistant Adjutant notified the Commander, U.S. Army Personnel Services Support Center, Fort Benjamin Harrison, Indiana, that the applicant was discharged under the provisions of Army Regulation 635-208 on 8 April 1965 while in an absentee status and that the DD Form 214 and related documents were forwarded by certified mail to Tuolumne County Jail, Sonora, California, for delivery to the applicant.

15.  The applicant’s military personnel records are absent any evidence that he served in Vietnam at any time during his military service and there is no evidence the applicant was ever in a POW status.

16.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  Paragraph 6 (Applicability) of this regulation 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.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a discharge for unfitness was normally furnished an Undesirable Discharge Certificate.

18.  Army Regulation 635-5-1 (Separation Program Numbers), 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 to be entered on the DD Form 214.  It identifies the SPN of "28B" as the appropriate code to assign to enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel.  Chapter 3 (Character of Service/Description of Separation), 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.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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 the character of service of his discharge should be upgraded to a general discharge under honorable conditions because he was tortured by the Viet Cong while being held as a POW in Vietnam and the experience led to his drinking every night to try to escape the horror of the memories.  As a result, when he was confined in the post stockade at Presidio of San Francisco, California, he felt he had to get out, so he escaped and went AWOL.

2.  There is no evidence of record that shows the applicant served in Vietnam at any time during his military service.  There is also no evidence that the applicant was ever in a POW status.  Thus, the evidence of record does not support the applicant’s contentions and/or the reasons he provides for escaping from the post stockade and going AWOL.

3.  The evidence of record shows the applicant enlisted and entered active duty in the RA on 13 October 1958 and he was honorably discharged on 10 April 1961.  The evidence of record also shows that the DD Form 214 with an effective date of 10 April 1961 documents this period of the applicant’s honorable active duty service.

4.  The evidence of record shows the applicant reenlisted in the RA for a period of 6 years on 11 April 1961.  The evidence of record also shows that during the period of service under review the applicant was convicted by summary court-martial on 28 June 1962 and convicted by special court-martial on 18 December 1964.  The evidence of record also shows that the applicant had 129 days lost from 1 December 1964 through 8 April 1965 when he was discharged under other than honorable conditions in an absentee status.  Thus, the applicant’s record of service during the period of service under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for government benefits.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant has failed to provide such evidence.  Thus, in the absence of evidence to the contrary, the presumption is that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090002224



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ABCMR Record of Proceedings (cont)                                         AR20090002224



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