IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090015182 


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 upgrade of his undesirable discharge.

2.  The applicant states that his discharge should be upgraded due to his honorable service in Vietnam.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 August 1971.

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.  On 29 November 1968, the applicant enlisted in the Regular Army (RA) in Abilene, TX, for 3 years, in the rank/grade of private (PV1)/E-1.  He successfully completed his training and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was subsequently transferred to and he arrived in Vietnam on 11 May 1969.

3.  The applicant was honorably discharged on 28 July 1969, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he completed 8 months of total active service.

4.  The applicant was in Vietnam on 29 July 1969 when he reenlisted in the RA for 3 years.  He returned to the continental United States on 11 April 1970 and he was assigned to Company B, 2nd Battalion, 13th Armor, 1st Armor Division, Fort Hood, TX.

5.  The applicant was convicted by a special court-martial on 30 October 1970 of being absent without leave (AWOL) from 29 June 1970 until on or about 2 July 1970.  He was sentenced perform extra duty for 35 days.

6.  On 9 February 1971, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 1 February 1971 until 2 February 1971.  His punishment consisted of 14 days of restriction and extra duty.

7.  On 15 April 1971, NJP was imposed against the applicant for being absent without authority from 0600 hours to on or about 1830 hours on 5 April 1971.  His punishment consisted of 14 days of restriction and extra duty.

8.  On 21 July 1971, the applicant was convicted by a summary court-martial of being AWOL from 24 April until 27 April 1971; 30 April until 1 May 1971; 31 May until 1 June 1971; 22 June until 24 June 1971 and 27 June until 29 June 1971.  He was sentenced to reduction to the grade of E-1, forfeiture of $120.00 pay per month for one month, and hard labor without confinement for 45 days.

9.  The applicant was notified on 10 June 1971 that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) by reason of unfitness, due to frequent involvement of a discreditable nature with military or civil authorities.  He acknowledged receipt of the notification on 6 Jul 1971 and, after consulting with counsel, he waived his right to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on 4 August 1971 and he directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 31 August 1971, the applicant was discharged under 
the provisions of Army Regulation 635-212, for unfitness, due to frequent involvement of a discreditable nature with military or civil authorities.  He had completed 1 year, 9 months, and 4 days of active service this period, for a total of 2 years, 5 months, and 4 days of creditable active service, with 121 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

11.  The applicant’s record document that the highest rank/grade he held on active duty was private first class (PFC)/E-3 and that his conduct and efficiency ratings were excellent while he was in Vietnam.  However, his records contain no documented acts of valor, achievement, or service warranting special recognition.

12.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.

14.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.  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 undesirable discharge should be upgraded to an honorable or a general discharge based on his honorable service in Vietnam.

2.  His contentions have been noted and although his records show that his conduct and efficiency ratings were excellent while he was in Vietnam, his records contain no documented acts of valor, achievement, or service warranting special recognition.

3.  The applicant's records show that he had 121 days of lost time due to AWOL and confinement as a result of his numerous acts of indiscipline.  Based on the available evidence of record, the type of discharge that he received was appropriate and his service was properly characterized.

4.  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 has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090015182



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ABCMR Record of Proceedings (cont)                                         AR20090015182



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