IN THE CASE OF:	

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090012882 


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 record be corrected to show his service in the Republic of Vietnam and that he served more than 2 months and 1 day of creditable active duty service.  The applicant further requests that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he was in the military for more than 2 months and that he also served in the Republic of Vietnam.  The applicant admits that he started abusing drugs during his military service and was not on the right path.  The applicant concludes that he has tried to get his life straightened out and is proud to say that he has changed his life.

3.  The applicant provides no documentary evidence in support of 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 enlisted in the Regular Army and entered active duty on 8 August 1969.  He did not complete basic combat or advanced individual training and was not awarded a military occupational specialty.  The highest rank the applicant achieved during his active duty service was private (PV1)/pay grade E-1.

3.  The applicant's disciplinary history includes acceptance of nonjudicial punishment for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by departing his unit in an absent without leave (AWOL) status on 21 August 1969 and remaining so absent until 28 August 1969.  As a result, the applicant's punishment included forfeiture of $23 and 14 days of extra duty.

4.  A DD Form 493 (Extract of Military Records of Previous Convictions), dated 27 February 1970, and a DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) - Record of Court-Martial Conviction) show the applicant was tried and convicted by a special court-martial for one specification of violation of Article 86 of the UCMJ by absenting himself from his unit in an AWOL status on 6 September 1969 and remaining so absent until 4 December 1969.  As a result of his conviction, the applicant was sentenced to confinement at hard labor for a period of four months.  The sentence was adjudged on 12 January 1970 and approved on 21 January 1970.

5.  On 27 February 1970, the applicant's unit commander recommended that he be discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability.  The commander cited the applicant's receipt of a special court-martial, receipt of an Article 15, chronic AWOL, and inability to adjust to military life as the specific reasons for his recommendation.  The commander noted that the applicant had been counseled by his chain of command numerous times, to no avail.  The commander also opined that a rehabilitation transfer of the applicant to another unit would serve no useful purpose and would only result in another command having to discharge him for the same reason.

6.  The applicant consulted with legal counsel regarding the basis for the contemplated action to accomplish his separation for unsuitability.  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 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 could expect to encounter substantial prejudice in civilian life.

7.  On 19 March 1970, the separation approval authority approved the applicant's discharge and directed that he be furnished a DD Form 257A (General Discharge Certificate).

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms that he was discharged accordingly.  This DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-212.  His service was characterized as under honorable conditions and he was issued a General Discharge Certificate.

9.  Item 11d (Effective Date) of the applicant's DD Form 214 shows he was discharged on 30 March 1970.  Item 16c (Date of Entry) shows he entered active duty on 8 August 1969.  Item 22a(1) shows he completed a total of 2 months and 1 day of creditable active federal service during his period of enlistment.  Item 26a (Non-Pay Periods Time Lost (Preceding Two Years)) shows the following periods as time lost:  21 to 27 August 1969, 6 September 1969 to 4 December 1969, and 13 January 1970 to 29 March 1970.

10.  The record shows the applicant departed his unit in an AWOL status on two occasions:  from 21 to 27 August 1969, a period of 7 days; and from 6 September to 4 December 1969, a period of 90 days.  The record also shows the applicant was in confinement from 13 January to 29 March 1970, a period of 76 days.  These periods of time resulted in a cumulative total of 173 days or 5 months and 23 days of time lost during the applicant's period of enlistment (8 August 1969 through 30 March 1970, a period of 235 days or 7 months and 24 days).

11.  The applicant's DD Form 214 does not credit him with service in the Republic of Vietnam or any other overseas location.  Additionally, a thorough review of the applicant's available service personnel record failed to reveal any evidence that he ever served in the Republic of Vietnam or any other overseas location.  


12.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, the regulation states that:

		a.  Item 16c would reflect the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

		b.  Item 11d would show the Soldier's transition date.  This date may not be the contractual date if the Soldier was separated early, voluntarily extended, or was extended for make up of lost time, or retained on active duty for the convenience of the Government;

		c.  Item 22a(1) would show the Soldier's amount of creditable service this period, computed by subtracting the value in Item 16c from the value in Item 11d.
Lost time under Title 10 U.S. Code, Section 972 (10 USC 972) and non-creditable time after Expiration Term of Service (ETS), if any, were deducted.

		d.  Item 26a would show time lost which has been subtracted from Item 22a(1) if the lost time was not "made good."  If the Soldier's ETS was adjusted as a result of lost time and the Soldier served until ETS, the lost time was "made good."  The regulation stated that time lost due to confinement and/or periods of unauthorized absence was not creditable service for pay, retirement, or veteran's benefits.  However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (Item 16c) and separation date (Item 11d) was creditable service.  Time lost after ETS was non-chargeable time under 10 USC 972, but it must also be reported to ensure it was not counted in computation of total creditable service for benefits.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

14.  Army Regulation 635-200, 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected to show his service in the Republic of Vietnam and that he served more than 2 months and 1 day of creditable active duty service.  He also contends that his general discharge under honorable conditions should be upgraded to an honorable discharge.  These contentions were carefully considered and determined to lack merit.

2.  There is no evidence in the applicant's available personnel record and he has failed to provide any evidence that shows he served in the Republic of Vietnam or any other overseas location at any time.  Therefore, the applicant is not entitled to correction of his DD Form 214 to show that he served in the Republic of Vietnam.

3.  Army Regulation 635-5, in effect at the time, provided that time lost due to confinement and/or periods of unauthorized absence was not creditable service for pay, retirement, or veteran's benefits.  This regulation also provided that creditable active duty service would be determined by subtracting time lost from 2the separating Soldier's total period of service for which the DD Form 214 was being rendered.  The applicant's creditable service (2 months and 1 day) was determined by subtracting his lost time (5 months and 23 days) from his total period of enlistment (7 months and 24 days).  Therefore, his DD Form 214 is properly constituted and the applicant is not entitled to correction to show he had more creditable service.

4.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

5.  The applicant admits that he had a pattern of misconduct and does not question whether he was properly and equitably discharged in accordance with the regulation in effect at the time.
6.  Based on his record of indiscipline, the applicant's service clearly did 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 an honorable discharge.

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement for any of his contentions.

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)                                         AR20090012882





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ABCMR Record of Proceedings (cont)                                         AR20090012882



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