BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090005658 


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 that his undesirable discharge (UD) be upgraded to an honorable discharge.

2.  The applicant states that it would be in the interest of justice to upgrade his discharge in light of his whole military service record and his service to his community since his discharge.

3.  The applicant explains that he was 18 and 19 years old while in Vietnam fighting an unpopular war.  But he did his duty and was even awarded the Army Commendation Medal (ARCOM) for Valor.

4.  When he returned to the United States he had many sleepless nights and other physical and psychological abnormalities.  He sought help from both doctors and psychologists.  At one point he was sent to the parade grounds with other Soldiers with fixed bayonets and told they could possibly be sent to universities as crowd control.  When he refused to participate, the officer in charge threatened him with reprisal under the Uniform Code of Military Justice (UCMJ).  At that point he departed absent without leave (AWOL).  When he returned, he was sent to the stockade, given a court-martial, and then discharged.




5.  The applicant states that since his discharge he has been actively involved with community issues.  He has served as co-producer of the Napa Valley Jazz Festival which is a non-profit music festival donating all proceeds to the music departments at various high schools, and he has been involved with wine and food fundraisers that donated their proceeds to elders, children and homeless.

6.  The applicant provides the orders awarding him the ARCOM for Valor.

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 records show that he was inducted in the Army on 30 June 1966, was awarded the military occupational specialty of field artilleryman, and was promoted to pay grade E-4.  He served in Vietnam from 18 November 1967 to 15 November 1968.

3.  On 20 August 1967, the applicant was arrested for unlawfully driving away an automobile.

4.  On 9 November 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 3 to 8 November 1967.

5.  On 14 October 1968, General Orders Number 9869 awarded the applicant the ARCOM for Valor.  The applicant was a specialist, pay grade E-4 at that time.  In those orders it was stated that when the applicant's unit clashed with hostile elements, the applicant courageously ran through the enemy fire to positions from which he directed highly accurate artillery support.

6.  On 27 November 1968, the applicant was arrested for aggravated assault.

7.  On 13 January 1969, the applicant was arrested for possession of marijuana.
8.  When the applicant reported to his unit upon his return from Vietnam, on 28 January 1969 a telephone conversation record was generated.  When the applicant's DA Form 20 (Enlisted Qualification Record) was being reviewed when the applicant was being inprocessed into the unit, it was noted that his General Technical (GT) score was 197.  Since this is an unusually high score, his records were reviewed and it was discovered that in addition to alterations of his Army Classification Battery aptitude area test scores, his enlistment document was altered to delete the years of service enlisted for, and an unauthorized remark was entered on the enlistment contract.  It was recommended that the applicant not be allowed to handcarry his military records for any reason in the future.

9.  On 6 February 1969, the applicant accepted NJP under Article 15, Uniform Code of Military Justice, for absenting himself from his unit from 0530 to 2230 hours.  His punishment included a reduction to pay grade E-3.

10.  On 9 April 1969, the applicant was given a physical examination in conjunction with separation action being initiated against him for unfitness.  He was found medically qualified for retention without any physical profile restrictions.

11.  On 16 April 1969, the applicant was convicted by a special court-martial for being AWOL from 10 to 30 March 1969.  His sentence consisted of confinement for 4 months, a reduction to pay grade E-1, and a forfeiture of $97.00 a month for 6 months.  The convening authority approved the sentence and ordered it executed, but suspended the confinement for 4 months.

12.  Between 9 June 1967 and 19 May 1969, the applicant complained of and was treated for nervousness on eight occasions.  He was prescribed Librium for a nervous breakdown and was later prescribed Valium and bed rest.  He was said to jump at loud noises and his hands constantly shook.  The applicant reported that he had been nervous since Vietnam.

13.  The applicant's records do not contain his discharge packet.  However, on 12 June 1969 he was given an undesirable discharge due to unfitness under the provisions of Army Regulation 635-212.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitibility.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

16.  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 has not provided any evidence to support his contention that he was being trained for crowd control after his return to the United States from Vietnam.

2.  While the applicant states that he only went AWOL after being told he was going to be used for crowd control in the United States and he had seen enough killing in Vietnam, his records show that his first period of AWOL happened prior to his assignment to Vietnam.

3.  The applicant accepted NJP twice for absenting himself from his unit and AWOL; he was arrested for unlawfully driving away automobile, aggravated assault, and possession of marijuana; he was convicted by a special court-martial of being AWOL from 10 to 30 March 1969; and he altered his military records when he handcarried them from Vietnam.  As such, his misconduct was not one isolated incident as he implies.

4.  The applicant's health records show that he was being treated for nervousness while on active duty.  However, he was found medically qualified for retention with no physical profile restrictions prior to his discharge.

5.  The applicant's discharge packet is not available to review.  As such, the exact reason(s) which formed the basis of the applicant's discharge for unfitness cannot be determined.  

6.  The applicant's ARCOM for Valor is mitigating and his post-service conduct is noteworthy.  However, this decoration and the applicant's post-service conduct are insufficient to warrant upgrading a properly-issued discharge based on a record of repeated misconduct to either an honorable or a general 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.




      _______ _   ___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)                                         AR20090005658





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ABCMR Record of Proceedings (cont)                                         AR20090005658



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