IN THE CASE OF:	  

		BOARD DATE: 	         30 June 2009

		DOCKET NUMBER:  AR20090006606 


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 was wounded and then went back to the field where he could not function.  He states his Army lawyer would not listen to his concerns and how he felt after he was wounded.  He has not forgotten that day and states he could not adapt after he was wounded.

3.  The applicant provides a self-authored statement and three letters of reference in support of his application.  In his statement he says, in effect, that he was a slow learner and could not keep up with his brother and sisters.  He felt he could not grasp education like others which contributed to his low self-esteem and feelings of being an outcast.  He wanted to be accepted but it was hard and he was confused. When he received his draft papers to enter the Army, he was proud and hopeful thinking that he would now fit in somewhere and that his family would be proud of him for wearing a uniform.

4.  While on tour in Vietnam, the applicant questioned why he was there, why he was killing people he did not know, and if he was doing the right thing.  When he was wounded, he really started to question himself and was confused.  On one hand he was prepared to die for his country, yet on the other he felt that the Vietnamese people did not want them in their country.  He states, in effect, that if his actions were wrong he apologizes and asks for forgiveness. 

5.  He continues in his statement saying that his discharge has caused him and his family a lifetime of hardships.  He had difficulty finding employment but eventually he was employed by a school district.  He states, in effect, that he is now retired and has chronic medical conditions to include being on kidney dialysis.  The condition of his discharge has bothered him for nearly 30 years.  He states he did not run to Canada, that he shed blood for his country, that he is willing to make up lost time, and that he would like his discharge favorably upgraded. 

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 record shows that he was inducted into the Army of the United States on 2 November 1967.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  The applicant was assigned to Company C, 2nd Battalion, 12th Calvary, 1st Cavalry Division in the Republic of Vietnam on or about 18 June1968.  

4.  The applicant's service record contains a history of his acceptance of nonjudicial punishment (NJP) under the provision of the Uniform Code of Military Justice.  On 3 June 1968, he accepted punishment for being absent without authority (AWOL) from 6 May 1968 and 21 May 1968, for failure to go to his appointed place of duty, and for a second period of AWOL from 23 May 1968 to 24 May 1968 while stationed at Fort Lewis, WA.  On 8 June 1968, he accepted a second NJP for failure to obey the lawful order of a superior noncommissioned officer.  Appropriate punishments were imposed by the issuing authority.

5.  The applicant was convicted by two special courts-martial.  The first conviction was on 22 November 1968 for three specifications of being AWOL.  He was sentenced to confinement at hard labor for 90 days and reduced to private/pay grade E-1.  The second conviction was on 10 May 1969 for being AWOL from on or about 23 December 1968 to on or about 6 April 1969.  He was sentenced to confinement at hard labor for 6 months with 5 months suspended, forfeiture of $73.00 pay per month for 6 months, and reduction to private/pay grade E-1. 

6.  On 6 June 1969, the applicant's company commander notified him of his intent to recommend his separation under the provisions of Army Regulation 635-212 (Personnel Separation Discharge for Unfitness and Unsuitability) for unfitness.  

7.  The applicant consulted with counsel on an unknown date.  The applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He also acknowledged that he may be ineligible for many or all benefits as a Veteran under both Federal and State law and encounter substantial prejudices in civilian life if issued an undesirable discharge under conditions other than honorable.  He waived his right to have his case considered by a board of officers and to appear before such board of officers.  He elected not to submit statements on his own behalf and he waived representation by his appointed counsel or a civilian counsel at his own expense.

8.  On 17 June 1969, the division psychiatrist evaluated the applicant and found 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) and fit for duty in the Republic of Vietnam. 

9.  On 28 June 1969, the applicant's intermediate commander recommended separation and requested that further efforts at counseling and rehabilitation be waived stating the applicant had no inclination to complete his service in an honorable manner and that his continued retention would be prejudiced to good order and discipline.  He recommended an undesirable discharge.

10.  On 10 July 1969, the general court-martial convening authority approved the applicant's discharge and directed that an Undesirable Discharge Certificate be issued.  The approval authority waived the requirements for counseling and rehabilitation.  He concluded that further duty of the applicant would create serious disciplinary problems and it could be a hazard to the applicant.

11.  On 20 July 1969, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged with an undesirable discharge.  This form further confirms that he completed 1 year, 2 months, and 8 days of active federal service with 191 days of time lost due to absent without leave.  This same DD Form 214 shows that the applicant received the Purple Heart while serving in combat operations in the Republic of Vietnam.

12.  On 15 June 1970, the Army Discharge Review Board (ADRB) returned the applicant's request for a discharge upgrade to him without prejudice.  Neither the applicant nor his counsel had responded to an ADRB board notification letter dated 27 March 1970. 

13.  Three character letters of reference were submitted with the applicant's application.  The letters state, in effect, that the applicant is a concerned citizen of his community and often assists those less fortunate than himself.  He has helped care for children, been active in his church congregation, and has an abundance of positive qualities.  All three correspondents strongly recommend that the Board find in favor of the applicant by upgrading his discharge.  

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized 
use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness. Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Enlisted Personnel Separations), 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

16.  Army Regulation 635-200 (Enlisted Personnel Separations), 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.  

17.  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's contention that he had difficulty learning both in his youth and in the military is noted.  However, he successfully completed basic and advanced combat training and was awarded an MOS. 

2.  The applicant contends that he had difficulty returning to combat in the field after he was injured and awarded the Purple Heart.  The Board acknowledges the sacrifices that the applicant made during his active duty period of service in direct support of operational efforts in the Republic of Vietnam.  However, as a Soldier the applicant did not conform to acceptable military practices and standards with his repeated periods of being absent without leave totaling 191 days. 

3.  The applicant contends that his military lawyer did not listen to him as he tried to express his feelings after he was wounded.  While the Board cannot determine the amount of empathy the lawyer showed the applicant, the Board notes that the applicant was properly advised of his rights for the contemplated separation action.  The applicant authenticated that he understood the reason for separation and waived his right to have his case heard by a separation board of officers and to personally appear before said board.  He further waived representation by an appointed military counsel or a civilian counsel at his personal expense and he stated he would not submit a statement on his own behalf.  Finally, he acknowledged that he retained a copy of the military lawyer's separation counseling. 

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s administrative separation was in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.

6.  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 an honorable discharge.

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 that requirement.

8.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090006606



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ABCMR Record of Proceedings (cont)                                         AR20090006606



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