IN THE CASE OF:	

		BOARD DATE:	25 August 2009 

		DOCKET NUMBER:  AR20090006227 


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 an honorable discharge.

2.  The applicant states, in effect, that he took the discharge because he did not want to play Soldier.  He states he should not have gotten the charges he did in Vietnam.  As he remembers the incident, he was on the walking point of the formation and was ambushed.  He was told to enter a ditch that he believed held enemy forces.  He states his commanding officer ordered him to go into the ditch and that he refused to obey the order for he knew he would have been shot.  He had asked for machine gun support, but states he was denied that support.  After fighting all day, he states his unit was finally able to enter the area and saw that the ditches had been reinforced and provided better protection to the enemy forces.  He states he was charged with disobeying a direct order, but at the time he did not think it was a direct order. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 2 April 1971 and four letters of support.

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 inducted into the Army of the United States on 27 January 1970.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant was assigned to Company C, 3rd Battalion, 1st Infantry Brigade in the Republic of Vietnam on or about 12 August 1970.   

4.  On 15 December 1970, the applicant was convicted by a special court-martial for disobeying a lawful order of a superior noncommissioned officer.  The specification states that the applicant received a lawful order from his unit first sergeant to report to the southeast pad and board a helicopter leaving at 1330 hours for movement to a forward fire support base with further movement to the field location of Company C, 3rd Battalion, 1st Infantry.  His sentence was confinement at hard labor for three months and a reduction in rank to private (PV1)/E-1. 

5.  On 23 December 1970, the applicant's special court-martial sentence was approved with the confinement at hard labor suspended until 15 March 1971.

6.  On 31 December 1970, the applicant's special court-martial suspended sentence of confinement at hard labor was vacated and duly executed.  The applicant was confined at the U.S. Army Republic of Vietnam Installation Stockade for period of three-month.

7.  On 8 February 1971, a military psychiatrist evaluated the applicant.  The applicant told the examining psychiatrist that he would not return to the field.  His diagnosis was Passive Aggressive Personality (chronic to moderate) that was manifested by rejection of authority, moderate stress, mild predisposition, and moderate impairment.  The examiner noted the applicant did not graduate from high school.  The examination showed no psychiatric disease or any evidence of psychosis or neurotic thinking disorder.  The psychiatrist stated that the applicant knew right from wrong, that he could adhere to the right, and that he could 


participate competently in board proceedings.  He found the applicant fit for 
retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  The physiatrist recommended that the applicant be administratively separated from the Army under the provisions Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unfitness. 

8.  The applicant's discharge packet is not available for the Board's review. 

9.  On 2 April 1971, the applicant was separated with an undesirable discharge, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 1 year and 5 days of creditable active service with 61 days of lost time due to confinement.  He was given a reentry code of "3," and a separation code of 28b (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities).

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

11.  Pastors and former employers submitted four character reference letters of support.  The letters state, in effect, that the applicant is a responsible member of his community and often assists those less fortunate than himself.  He is an active member in his church congregation assisting with many service projects in the community.  He is a dedicated city employee in that he goes beyond his job requirements to assist his co-workers and the citizens of his community.    

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop as a satisfactory Soldier, further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.  

13.  Army Regulation 635-212 also states, in pertinent part, that in the processing of an administrative discharge, unit commanders would notify Soldiers that they were being considered for separation and the type of discharge that they could expect to receive.  The Soldier would have sought legal counsel, which includes advice that they could submit statements in their behalf, and request representation by an appointed counsel or a civilian counsel at their own 

expense.  Soldiers would acknowledge that they understood that they could 
expect to encounter substantial prejudice in civilian life with a general discharge or undesirable discharge.  In addition, they acknowledge that they can be 
deprived of many or all Army benefits; that they could be ineligible for many or all benefits administered by the Veterans Administration (VA); and that they could be deprived of their rights and benefits as a Veteran under both Federal and state law 

14.  Army Regulation 635-200 governs the policies and procedures 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.

15.  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.
  
16.  Army Regulation 15-185 (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 begin 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 evidence of record shows that the applicant disobeyed an order of a noncommissioned officer in his chain of command.  He specifically disobeyed a lawful order to board a helicopter for forward movement to his own unit's forward operating base.  He was convicted by a special court-martial.  The approving authority suspended the confinement portion of the court-martial conviction, yet evidence shows that there was reason for the approving authority to vacate his original decision.  Disobeying lawful orders of superior officers or noncommissioned officers in a combat environment is prejudicial to the good order and discipline of a unit especially when preparing and engaging in combat operations.

2.  There is no evidence that the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking 

evidence to the contrary, it must be presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  As such, the type of discharge and reason for separation were appropriate considering all the facts of the case.

4.  After a review of the applicant’s record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general, under honorable conditions or an honorable discharge.

5.  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 that 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)                                         AR20090006227



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ABCMR Record of Proceedings (cont)                                         AR20090006227


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