IN THE CASE OF:	  

		BOARD DATE:	9 July 2009  

		DOCKET NUMBER:  AR20090006720 


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 be upgraded to a more favorable discharge that will reflect his current status as a citizen.

2.  The applicant states that his actions as a young Soldier do not reflect his current status as a citizen.  He goes on to state that he has made major improvements in both his attitude and concern for our nation.  He also states that he is actively involved, he is a registered voter, and he is a college student in Oklahoma. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 in the Regular Army in Columbus, Ohio on 6 April 1964 for a period of 3 years under the airborne enlistment option.  He completed his basic and advanced individual training as an infantry indirect fire crewman at Fort Gordon, Georgia and he was transferred to Fort Benning, Georgia to undergo parachutist training.  He completed that training and was transferred to Fort Campbell, Kentucky for assignment to the 327th Infantry Regiment, 101st Airborne Division.  

3.  On 8 July 1965, he was transferred to Vietnam with his unit.  He was advanced to the pay grade of E-3 on 30 July 1965.  The applicant was wounded on 4 March 1966, medically evacuated to Ireland Army Hospital at Fort Knox, Kentucky, and subsequently transferred to Fort Campbell.  He was advanced to the pay grade of E-4 on 31 August 1966.

4.  On 7 October 1966, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 8 October 1966, he reenlisted for a period of 6 years.

5.  On 9 August 1967, he was again transferred to Vietnam, with an aviation unit, and he served as a door gunner.

6.  On 9 April 1968, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 7 April to 8 April 1968.  His punishment consisted of a forfeiture of one-half of 1 month's pay for 1 month.

7.  On 24 October 1968, he was convicted pursuant to his plea by a special court-martial of the wrongful possession of marijuana.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $180.00 pay per month for 6 months.  However, the convening authority approved only so much as pertained to confinement at hard labor for 6 months and a forfeiture of $70.00 pay per month for 6 months and suspended the execution of that portion providing for confinement at hard labor for 6 months unless sooner vacated.  On 8 January 1969, the convening authority vacated the unexecuted portion of the sentence.  However, on 6 February 1969, the remainder of the sentence was remitted.

8.  The applicant departed Vietnam on 11 March 1969 and he was transferred to Fort Rucker, Alabama for duty as an aircraft serviceman.

9.  On 7 January 1970, the applicant's commander deemed the applicant's conduct and efficiency ratings for the period of April 1969 to January 1970 as being unsatisfactory.  On 5 February 1970, the applicant's commander again  deemed the applicant's conduct and efficiency as being unsatisfactory and indicated that the applicant was AWOL from 5 February to 6 February 1970, that he was pending civil charges for alleged possession of marijuana, and that his performance of duty and conduct were way below standards.

10.  The applicant went AWOL on 26 January 1970 and remained absent in desertion until he was apprehended, and confined by civil authorities in Dothan, Alabama on 27 February 1970.  He was charged with seven counts of burglary in the second degree, grand larceny and receiving stolen property.  They were all grand jury indictments.

11.  On 18 May 1970, the applicant was convicted of burglary (second degree), grand larceny, and receiving stolen property.  He was sentenced to serve 10 years in the Alabama State Penitentiary.

12.  On 19 May 1970, he was again convicted of burglary (second degree), grand larceny and receiving stolen property and was sentenced to serve 4 years in the Alabama State Penitentiary.  The applicant did not appeal his convictions within the 6 months he was allotted to do so.

13.  On 18 January 1971, the applicant's commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-206 due to conviction by civil authorities.  The applicant requested that his case be considered by a board of officers and that he be represented by counsel.

14.  On 21 April 1971, a board of officers was convened.  The applicant was not present; however, he was represented by counsel.  After carefully considering all of the evidence, the board found the applicant was unfit for retention in the military due to conviction by a civil court and recommended that he be discharged under other than honorable conditions. 

15.  The appropriate authority approved the findings and recommendations and directed that he be issued an Undesirable Discharge Certificate.

16.  Accordingly, he was discharged under other than honorable conditions on 16 July 1971, under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  He had served 5 years, 8 months and 19 days of total active service and he had approximately 567 days of lost time due to being AWOL and in civil and military confinement. 

17.  On 22 September 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge under the Department of Defense Discharge Review Program (Special).

18.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation upon completion of their appeal of the civil conviction or immediately after they acknowledge that they do not intend to appeal the conviction.  An undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  

20.  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.  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.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

4.  The applicant’s contentions of good post-service conduct has been considered.  While the applicant has provided no evidence of good post-service conduct, good post-service conduct in itself has never been a basis for an upgrade of a discharge.  Therefore, given the seriousness of the applicant’s offenses and the lack of mitigating circumstances in his case, there appears to be no basis to upgrade his discharge.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  _____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   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)                                         AR20090006720



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ABCMR Record of Proceedings (cont)                                         AR20090006720



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