IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090015653 


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 undesirable discharge (UD) be upgraded and that the dates of time lost in item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected.

2.  The applicant states he believes he paid for his mistakes when he was court-martialed and reduced in rank and denied services and benefits through the Department of Veterans Affairs as a result.  He states that the sad part about it is that he has no recollection of his past.  He further states that he is truly sorry; however, all people should be given a second chance.  He further indicates that the dates listed in item 30 of his DD Form 214 are inconsistent with the dates entered in item 22 (Statement of Service) and item 26a (Time Lost).

3.  The applicant provides the following documents in support of his application:  a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); DD Forms 214, dated 29 August 1968, 20 November 1969, and 26 June 1973; third-party statements, dated in 2009; Healthcare for the Homeless documents; a Mental Health Mental Retardation Authority referral, dated 24 June 2009; and emergency room discharge forms, dated 14 June 2009.

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 29 December 1967.  He continually served through reenlistments for 4 years, 8 months, and 1 day until ultimately being discharged on 26 June 1973.

3.  The applicant's record shows he was trained in and awarded military occupational specialty 62B (Engine Equipment Repairman) and the highest rank he attained while serving on active duty was specialist five/E-5.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that during his tenure on active duty he earned the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Army Commendation Medal, Army Good Conduct Medal, two overseas service bars, and Marksman Marksmanship Qualification Badge with Rifle Bars (M-14 and 
M-16).

5.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of the applicant's DA Form 20 shows the applicant accrued 279 days of lost time during three separate periods of being absent without leave (AWOL) between 17 October 1969 and 21 September 1972 and two separate periods of imprisonment between 22 September 1972 and 26 June 1973.

6.  The applicant's record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  29 April 1971, for being absent from his place of duty and for willfully disobeying a lawful order given by his superior commissioned officer; 2 February 1972, for failure to go to his appointed place of duty at the prescribed time; and 15 March 1972, for being AWOL from 3 March 1972 to 13 March 1972.

7.  On 13 October 1972, a summary court-martial found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 26 June 1972 through on or about 21 September 1972.  The resultant sentence was hard labor without confinement for 2 months and reduction to private/E-1.

8.  The applicant's record contains a DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 1 February 1973.  This document shows action was being initiated to eliminate the applicant from the service under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) by reason of civil conviction.  It states in the remarks section that the flagging action was in addition to the actions initiated on 16 November 1972 and 24 November 1972.

9.  The applicant's record also contains a DA Form 268, dated 19 January 1973, which shows he was sentenced to 5 years' imprisonment on 19 January 1973 by the Federal District Court, El Paso, Texas.

10.  The applicant's official military personnel file is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does contain a properly constituted DD Form 214 that confirms that on 26 June 1973 he was discharged in the rank of private/E-1 under the provisions of section VI, Army Regulation 635-206, by reason of a conviction by a civil court during the current term of active military service and that he received a UD.  It also shows that he completed a total of 1 year, 2 months, and 26 days of creditable active military service and had accrued 279 days of time lost due to AWOL and confinement.

11.  The applicant provides third-party statements from his brother and sister who both attest to the fact that the applicant has flash backs of Vietnam and that he has lost much of his memory.  His sister further questions why his DD Form 214 states he was absent for 279 days.

12.  There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within that board's 15 year statute of limitations.

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for separation of enlisted personnel.  It provided, in pertinent part, that members convicted by civil authorities could be considered for separation.  A UD was normally considered appropriate for members separated under this provision of the regulation.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), the current regulation governing enlisted separations, provides guidance for issuing an honorable discharge (HD) in paragraph 3-7a.  It states, in pertinent part, that an HD 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.

15.  Paragraph 3-7b of the same regulation provides guidance on issuing a general discharge (GD) and states, in pertinent part, that a GD 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 HD.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UD be upgraded and that the dates of lost time contained in item 30 of his DD Form 214 be corrected was carefully considered.  However, there is insufficient evidence to support these claims.

2.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the authority and reason for his discharge.  It confirms he was separated due to a civil conviction that resulted in civil confinement and that he received a UD, as was appropriate under the regulatory guidance in effect at the time.  This document carries with it a presumption of government regularity in the discharge process.

3.  Notwithstanding the applicant's current unfortunate situation as outlined in the supporting statements, his record reveals an extensive disciplinary history that included his acceptance of NJP on four separate occasions and his accrual of 279 days of time lost due to AWOL and confinement.  Given this record of misconduct and the civil conviction that ultimately led to his discharge, his overall record of service did not support the issuance of a GD or HD by the separation authority at the time of his discharge and does not support an upgrade at this time.
4.  Absent evidence of error or injustice in the discharge process or in the time lost dates recorded in his record, there is an insufficient evidentiary basis to support granting the requested relief.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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.

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)                                         AR20090015653



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ABCMR Record of Proceedings (cont)                                         AR20090015653



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