IN THE CASE OF:  

		BOARD DATE:	2 December 2009  

		DOCKET NUMBER:  AR20090010861 


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, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that he went straight from prison to being drafted into the Vietnam War so, essentially, he went from one fire to the next in combat on the front line in the Republic of Vietnam.  The applicant contends that he should not have been drafted into the Vietnam War following his release from prison.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as documentary evidence in support of this application.  Although the applicant states that he also provided a self-authored statement regarding his "severe conditions due to service in [the] Vietnam War," his DD Form 214 was the only document received with this 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 was born on 16 May 1945.  A DA Form 2981 (Application for Determination of Moral Eligibility for Induction), dated 2 May 1968, shows a representative of the Armed Forces Examining and Entrance Station (AFEES) located in Los Angeles, CA, initiated a request to determine whether the applicant was eligible to be issued a moral waiver for induction into the Army of the United States (AUS).  This form shows the applicant was tried in Juvenile Court for the following offenses:  Assault and Battery [age 15], Violation of Probation [age 15], and two counts of Robbery [age 17].  This form also shows the applicant was tried by a Superior Court for Grand Theft [Auto] at the age of 19 and he was subsequently committed to a juvenile institution until age 21.  On 8 July 1968, although the request for waiver received both favorable and unfavorable recommendations, a waiver of civil offenses was approved and induction into the Armed Forces was authorized.

3.  On 3 September 1968, the applicant was inducted into the AUS at the age of 23 years, 3 months, and 19 days.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76A (Supply Clerk).  The highest rank/grade the applicant attained while serving on active duty was specialist four (SP4)/E-4.

4.  Headquarters, First Basic Combat Training Brigade, U.S. Army Training Center, Infantry, Fort Ord, CA, Special Orders Number 195, dated 2 October 1968, show that an act of misconduct by the applicant resulted in punishment in the form of a forfeiture of $20, effective 24 September 1968.

5.  Headquarters, First Basic Combat Training Brigade, U.S. Army Training Center, Infantry, Fort Ord, Summary Court-Martial Order Number 49, dated
26 October 1968, show the applicant was tried and convicted by a summary court-martial for violation of Article 90 of the Uniform Code of Military Justice (UCMJ) by willfully disobeying a lawful order from a commissioned officer.  As a result of his conviction, the applicant was sentenced to confinement at hard labor for one month and a forfeiture of $50.00 per month for one month.  The sentence was adjudged on 25 October 1968.


6.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was advanced to private (PV2)/E-2 effective 3 January 1969, to private first class (PFC)/E-3 effective 17 April 1969, and to SP4/E-4 effective 18 July 1969.

7.  Headquarters, U.S. Army Support Command Cam Ranh Bay, Special Court-Martial Order Number 13, dated 8 November 1969, show the applicant was tried and convicted by a special court-martial for two specifications of violation of Article 128 of the UCMJ by assaulting another Soldier by striking him with his fists on two occasions.  He was also tried and convicted for violation of Article 90 of the UCMJ by willfully disobeying a lawful order from a commissioned officer.  As a result of his conviction, the applicant was sentenced to confinement at hard labor for six months, a forfeiture of $87.00 per month for six months, and reduction to the rank/grade of private (PV1)/E-1.  The sentence was adjudged on 19 October 1969.

8.  Four DD Forms 508 (Report of/or Recommendation for Disciplinary Action) rendered during the period 20-25 November 1969 show the applicant's misconduct and the disciplinary actions taken during his confinement in the Joint Services Stockade.  His offenses included refusing to follow lawful orders on numerous occasions and being disrespectful to the prison staff.  His punishments included extra duty, loss of privileges, segregation, and a restricted diet.

9.  Joint Service Stockade letter, subject:  Notification of Elimination Proceedings, dated 16 December 1969, shows the correctional officer, a major (MAJ), notified the applicant that he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), for unfitness.  The correctional officer informed the applicant that the basis for this recommendation was his history of commission of court-martial offenses.  The correctional officer continued by advising the applicant of his rights to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.

10.  Evidence shows the applicant consulted with legal counsel regarding the basis for the contemplated action to accomplish his separation for unfitness.  After consulting with counsel, the applicant waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by appointed military or hired civilian counsel, and he elected not to submit statements in his own behalf.  The applicant also stated he understood that he 

could expect to encounter substantial prejudice in civilian life in the event he was issued a general discharge under honorable conditions.  He indicated he also 
understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

11.  Joint Service Stockade letter, subject:  Separation Under Army Regulation 635-212, dated 17 December 1969, shows the correctional officer recommended that the applicant be discharged under the provisions of Army Regulation
635-212 for unfitness and that he be issued an Undesirable Discharge Certificate.  The correctional officer stated that discharge was recommended because of habits and traits of character manifested by repeated commission of court-martial offenses.  He concluded that the applicant had not been amenable to correctional treatment, he habitually shirked his duties, he had an overall disregard for military authority, and he did not respond to rehabilitative efforts.

12.  Headquarters, U.S. Army Hospital, Ryukyu Islands, letter, dated 22 December 1969, shows a social work officer, a captain (CPT), provided a diagnosis and recommendation pertaining to the applicant's personality to the correctional officer.  The social work officer opined that the applicant possessed an antisocial personality and recommended that he be separated from the service as expeditiously as possible under the provisions of Army Regulation 635-212.  He also noted that the applicant professed to wanting out of the service under any conditions as long as he could get out quickly.  The social work officer further opined that the applicant was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

13.  On 5 January 1970, the intermediate commander, a colonel (COL), recommended approval of the separation action and requested waiver of the counseling and rehabilitation requirements of Army Regulation 635-212.  He stated that further duty of the applicant would create serious disciplinary problems in any unit to which he might be assigned.

14.  On 16 January 1970, the separation approval authority waived the counseling and rehabilitation requirements and approved the applicant's discharge.  He directed the issuance of an Undesirable Discharge Certificate.


15.  Headquarters, U.S. Army Personnel Center, Oakland, CA, Special Orders Number 19, dated 19 January 1970, ordered the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness, effective
19 January 1970, with a characterization of service of under other than honorable conditions and the issuance of an Undesirable Discharge Certificate.

16.  The applicant's DD Form 214 for the period ending 19 January 1970 confirms that he was discharged accordingly.  

17.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

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.  The applicant's contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  Records show that although the applicant had a history of civil offenses, a moral waiver was approved and induction into the Armed Forces was authorized.

3.  Records show that the applicant was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  The fact that the applicant was promoted several times shows that he had the ability to perform well and follow instructions when he so desired.

4.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization of service for this type of discharge is normally undesirable and that the applicant was made aware of that prior to his discharge.

6.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general, under honorable conditions 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)                                         AR20090010861



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010861



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1