IN THE CASE OF:	  

		BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090007334 


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 (UD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was on drugs he obtained while serving in the Republic of Vietnam (RVN) when he committed his crime, which was to support his drug addiction.  He claims he received no help from the Army for his problem and his UD was unjustified given his service to his country in the RVN.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a DA Form 8-275 (Clinical Record Cover Sheet) in support of his application.

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 record shows he enlisted in the Regular Army and entered active duty on 4 November 1969.  He held and served in military occupational specialties 71B (Clerk Typist) and 62F (Crane Operator) and the highest rank he attained while serving on active duty was private first class/E-3.

3.  The applicant’s record shows that during his tenure on active duty he earned the Vietnam Service Medal, RVN Campaign Medal with Device (1960), RVN Gallantry Cross with Palm Unit Citation, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars. 
His record documents no acts of valor or significant achievement.

4.  The applicant's record documents a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions and a special court-martial (SPCM) conviction.

5.  On 14 January 1970, the applicant accepted NJP for disobeying a lawful order.  His punishment for this offense was a forfeiture of $26.00 and 7 days of restriction (suspended 23 January 1970).

6.  On 23 March 1970, the applicant accepted NJP for failing to go to his appointed place of duty at the prescribed time.  His punishment for this offense was a reduction to private/E-1, a forfeiture of $29.00, and 14 days of extra duty and restriction (suspended for 6 months).

7.  On 20 December 1970, the applicant accepted NJP for three specifications of willfully disobeying lawful orders, for lifting up a loaded rifle against a superior commissioned officer, for leaving his guard post before being properly relieved, wrongfully and willfully discharging a weapon, dereliction of duty, and failing to go to his appointed place of duty at the prescribed time.  His punishment for these offenses was a reduction to private/E-1, a forfeiture of $60.00 per month for 2 months, and 60 days of restriction.

8.  On 8 November 1971, a SPCM found the applicant guilty of violating Article 128 of the UCMJ by unlawfully striking a Soldier on the neck with his fist and for unlawfully striking another Soldier by pushing him on the ground.  The resultant sentence was confinement at hard labor for 5 months and a forfeiture of $80.00 per month for 5 months.

9.  The applicant's official military personnel file contains a DA Form 3647 (Clinical Record Cover Sheet).  This document shows the applicant was admitted to the 6th Convalescent Center on 5 July 1972 for his improper use of heroin.

10.  On 20 November 1972, the applicant accepted NJP for disobeying a lawful order.  His punishment for this offense was a forfeiture of $100.00 and 14 days of extra duty.

11.  On 26 February 1973, the applicant was convicted of burglary, one count of robbery, and three counts of abduction charges in the Newport News Circuit Court, Newport News, Virginia, and sentenced to one life-term plus 10 years.

12.  On 13 April 1973, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant.  He requested the applicant be barred from reenlistment based on his record of receipt of an Article 15 for violation of Article 90 (disobeying a lawful order, civil conviction for burglary and petit larceny).  On 15 May 1973, the appropriate authority approved the applicant’s bar to reenlistment.

13.  On 22 December 1973, the applicant’s unit commander notified him that action was being initiated to eliminate him from the Army under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) based on his conviction and sentence by a civil court.  The paperwork was delayed due to the applicant's pending appeal and on 15 February 1975 the applicant was again notified by registered mail.  However, he failed to respond and as a result it was understood that he had waived his rights.

14.  On 25 April 1975, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-206 by reason of civil conviction and he directed the applicant receive a UD.  On 30 April 1975, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his separation confirms he completed a total of 2 years, 11 months, and 16 days of creditable active military service and that he accrued 720 days due to confinement.

15.  On 28 September 1978, the Army Discharge Review Board, after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable and it voted to deny his request for a change to the characterization of his service and/or to the reason for his separation.

16.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separating under this provision of the regulation; however, the separation authority could issue an honorable discharge (HD) or GD if warranted by the member's overall record of service.  

17.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an HD 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.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  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's contention that due to the fact he was a drug addict and received no help from the military for his drug addiction he was led to commit the misconduct, and that based on serving his country in the RVN his UD should be upgraded to a GD, was carefully considered.  However, the evidence of record confirms the applicant was admitted to an Army convalescent center on 5 July 1972 for his improper use of heroin and that he was afforded medical help for his drug problem which he failed to respond to in a positive manner.

2.  The applicant's record documents no acts of valor or significant achievement and his combat service in the RVN is marked by several incidents of misconduct. His record reveals an extensive disciplinary history that includes his acceptance of NJP on four separate occasions, his conviction by a SPCM, and his ultimate civil conviction which led to his discharge.  As a result, it is clear his UD accurately reflects his overall record of service which did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade at this late date.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of undistinguished service.

4.  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.

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)                                         AR20090007334



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ABCMR Record of Proceedings (cont)                                         AR20090007334



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