BOARD DATE: February 18, 2010
DOCKET NUMBER: AR20090014288
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 that his undesirable discharge be upgraded to honorable.
2. The applicant states, in effect, that he was court-martialed after a firefight against the Viet Cong and North Vietnamese Army for not answering field communications and following the chain of command. He was sentenced to hard labor in Long Binh, South Vietnam.
3. The applicant provides no documentary evidence 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 enlisted in the Regular Army on 27 December 1968 for a period of 3 years. He successfully completed basic combat training and on-the-job training in military occupational specialty 51K (plumber).
3. On 13 June 1969, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 10 June 1969 to 13 June 1969. His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, restriction, and extra duty.
4. On 25 June 1969, the applicant was convicted in accordance with his plea by a summary court-martial of being AWOL from 13 June 1969 to 14 June 1969. He was sentenced to be confined at hard labor for 30 days and to forfeit $25.00 of pay per month for 1 month. On 25 June 1969, the convening authority approved the sentence but suspended the sentence to confinement for 1 month. On 7 July 1969, the suspended portion of the sentence was vacated.
5. Records show the applicant was AWOL on 10 October 1969.
6. On 9 December 1969, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a forfeiture of pay, restriction, and extra duty.
7. On 17 March 1970, nonjudicial punishment was imposed against the applicant for absenting himself from his appointed place of duty. His punishment consisted of a forfeiture of pay.
8. On 28 April 1970, nonjudicial punishment was imposed against the applicant for being AWOL from 20 April 1970 to 23 April 1970. His punishment consisted of a forfeiture of pay and restriction.
9. On 16 June 1970, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation and being drunk on duty. His punishment consisted of a forfeiture of pay.
10. The applicant arrived in Vietnam on 28 June 1970.
11. On 28 August 1970, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a forfeiture of pay, restriction, and extra duty.
12. On 28 September 1970, contrary to his pleas, the applicant was convicted by a special court-martial of communicating a threat to kill a captain and assaulting a specialist five by pointing a weapon at him. He was sentenced to be confined at hard labor for 4 months, to forfeit $88.00 of pay per month for 42 months, and to be reduced to E-1. On 6 October 1970, the convening authority approved the sentence. On 24 November 1970, the convening authority remitted the unexecuted portion of the sentence to confinement.
13. On 26 October 1970, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.
14. On 28 October 1970, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel. He also elected not to submit a statement on his own behalf.
15. On 29 October 1970, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. The unit commander based his recommendation for separation on the applicant's repeated commission of court-martial offenses and cited that the applicant habitually shirks his duties, that he has an overall disregard for military authority, and that he does not respond to rehabilitative efforts.
16. On 29 October 1970, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.
17. The applicant departed Vietnam on 27 November 1970.
18. On 28 November 1970, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He had served 1 year, 8 months, and 1 day of creditable active service with 90 days lost due to AWOL and confinement.
19. On 6 December 1983, the Army Discharge Review Board denied the applicant's request for a general discharge.
20. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
21. Army Regulation 635-200 sets forth the basic authority 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.
22. 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 record of service included six nonjudicial punishments, one summary court-martial conviction, one special court-martial conviction for serious offenses, and 90 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.
2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
3. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
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.
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