BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009888 


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 his under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states that he remembers that in September or October 1971 while serving in Vietnam, he was approached by a staff sergeant who asked if he wanted to return back to the United States.  He responded with an affirmative answer and signed some paperwork without looking at what he had signed.  When he arrived at Fort Ord, CA, he realized that he had been separated with an Undesirable Discharge Certificate.  However, he did not care at the time as he was focused on returning home to a normal life.  He adds that in 1980, he suffered some medical problems and was diagnosed as diabetic.  He further adds that he believes that he became diabetic in Vietnam during one of the trips he made along the Cambodian border where he believes he was exposed to Agent Orange.  He further adds that subsequent to his return from Vietnam, he struggled throughout his adult life in maintaining gainful employment and/or permanent housing.  He has also been interned in a psychiatric hospital on three occasions as a result of the memories of what he encountered in Vietnam.  He concludes that he would like the Board to upgrade his discharge so he may get help with his diabetes.

3.  The applicant did not provide any additional documentary evidence 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 that he enlisted in the Regular Army for a period of 3 years on 28 August 1969.  He completed basic combat training and was reassigned to Fort Gordon, GA, for completion of military occupational specialty (MOS) 72B (Communications Center Specialist).  However, he was relieved from training due to academic failure and was reassigned to Fort Dix, NJ, where he completed advanced individual training and was awarded MOS 94B (Cook).  The highest rank/grade he attained during his military service was private first class/
pay grade E-3.

3.  The applicant's records also show that he served in the Republic of Vietnam from on or about 14 October 1970 to on or about 8 November 1971.  His records further show he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal.

4.  On 5 January 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for twice being absent from his appointed place of duty (guard mount and guard post) on or about 29 December 1970 and on or about 30 December 1970.  His punishment consisted of a reduction to private (PV2)/pay grade E-2 and a forfeiture of $20.00 pay for 2 months.

5.  On 5 May 1970, the applicant pled not guilty at a special court-martial to one specification of being absent without leave (AWOL) during the period on or about 23 February 1970 through on or about 14 April 1970.  The court found him guilty of the charge and specification and sentenced him to confinement at hard labor for 3 months and forfeiture of $80.00 pay per month for 3 months.  The sentence was adjudged on 5 May 1970 and approved on 8 May 1970.

6.  On 22 June 1970, the unexecuted portion of the sentence to confinement at hard labor for 3 months and forfeiture of $80.00 pay per month for 3 months was ordered remitted.

7.  The applicant's records further show he was reduced to private (PVT)/pay grade E-1 on 7 September 1971 by Special Orders 272, issued by Headquarters, U.S. Army Support Command, Da Nang, Vietnam, dated 29 September 1971.  However, the details of this reduction are not available for review.

8.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that confirms he was discharged on 19 November 1971 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness and that he received a character of service of under other than honorable conditions.  This form further confirms that he completed 1 year, 10 months, and 24 days of creditable active military service and had 118 days of lost time due to AWOL and confinement.

9.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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:  a) frequent incidents of a discreditable nature with civil or military authorities, b) sexual perversion, c) drug addiction, d) an established pattern of shirking, and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

11.  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.

12.  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 record is void of the facts and circumstances that led to his discharge.  However, the applicant's records contain a copy of a properly constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200 by reason of unfitness.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 the available record, which includes misconduct that started before he went to Vietnam, the applicant's service 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 discharge 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)                                         AR20090009888



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ABCMR Record of Proceedings (cont)                                         AR20090009888



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