IN THE CASE OF:	

		BOARD DATE:	20 August 2009  

		DOCKET NUMBER:  AR20090007609 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states, in effect, that his discharge should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 December 1971, in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 16 July 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 62E (Crawl Tractor Operator).  The highest rank he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in the Republic of Vietnam from on or about 20 January 1971 to on or about 3 December 1971.  His records further show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records reveal an extensive history of counseling sessions by various members of his chain of command for missing formations, missing work call, dangers of drug use, shirking duties, and abusing drugs.

5.  The applicant's records also reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 11 January 1971, for being absent without leave (AWOL) during the period on or about 29 December 1970 to on or about 6  January 1971.  His punishment consisted of a forfeiture of $30.00 pay;

	b.  on 12 February 1971, for being found sleeping while on post as a sentinel at a guard bunker on the perimeter in the Republic of Vietnam on or about 8 February 1971.  His punishment consisted of a reduction from PFC/E-3 to private (PV2)/E-2;

	c.  on 25 May 1971, for disobeying a lawful order from his battalion commander by being outside the perimeter wire of his camp in the Republic of Vietnam on or about 23 May 1971.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $50.00 pay per month for 2 months, and 45 days of restriction;

	d.  on 14 August 1971, for wrongfully possessing 5 grams, more or less, of heroin on or about 1 August 1971.  His punishment consisted of a reduction to PVT/E-1, 14 days of restriction, and 14 days of extra duty; and

	e.  on 16 September 1971, for being found sleeping while on post as a sentinel at a guard bunker on the perimeter in the Republic of Vietnam on or about 11 September 1971.  His punishment consisted of a forfeiture of $67.00 per month for 2 months and 60 days of restriction.

6.  On 28 November 1971, the applicant's immediate commander notified the applicant of his intent to initiate elimination from the service action against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  The immediate commander cited the applicant's frequent incidents of a discreditable nature including repeated commission of court-martial offenses and his established pattern of shirking.  The immediate commander further recommended an Undesirable Discharge Certificate.

7.  On 30 November 1971, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.

8.  Accordingly, the applicant's immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-212 by reason of unfitness.  The immediate commander further recommended an Undesirable Discharge Certificate.

9.  On 3 December 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  On 9 December 1971, the applicant was accordingly discharged from the Army.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed 1 year, 4 months, and 17 days of creditable active military service and had 7 days of lost time.

10.  On 8 December 1981, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

11.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.

13.  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 contends that his discharge should be upgraded.

2.  The applicant's records reveal an extensive history of counseling, indiscipline and/or misconduct including five instances of NJP, one instance of AWOL, and one instance of possession of illegal drugs.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with the applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable 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)                                         AR20090007609



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ABCMR Record of Proceedings (cont)                                         AR20090007609



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