IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090016306 


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 a general discharge under honorable conditions.

2.  The applicant states, in effect, he was in good standing with the Army until he returned from the Republic of Vietnam.  He firmly believes he was suffering from post-traumatic stress disorder (PTSD) and that this interfered with his ability to make good decisions and choices.  He states he has been a model citizen since his discharge.  He worked for one company for 20 years and has been employed by his current company for 12 years.

3.  The applicant provides one personal reference, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a 
DD Form 215 (Correction to DD Form 214), 18 pages from his Military Personnel Records Jacket, and 11 pages from his service medical records.

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 military personnel records show he enlisted in the Regular Army on 16 February 1968 for a period of 2 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11B (Light Weapons Infantryman).

3.  On 31 July 1968, the applicant was assigned to the 3rd Battalion, 21st Infantry in the Republic of Vietnam.  He was wounded in action on 12 May 1969 and spent a little over 2 months in the 106th General Hospital.  On 28 July 1969, he was returned to the U.S. and on 26 August 1969 he was assigned to the 
1st Battalion, 58th Infantry at Fort Benning, GA.

4.  The applicant was awarded the Purple Heart and the Combat Infantryman Badge for his service in the Republic of Vietnam.

5.  On 30 April 1970, the applicant was convicted by a special court-martial of being absent without leave (AWOL) during the periods from 1 December 1969 - 10 February 1970 and from 14 - 18 February 1970.  His sentence consisted of confinement at hard labor for 30 days and hard labor without confinement for 
60 days.  The sentence was approved on 8 May 1970.

6.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on the following two occasions:

* 28 August 1970 – for failure to go to his appointed place of duty

* 20 October 1970 – for being absent from his appointed place of duty

7.  On 16 December 1970, the applicant was convicted in the Circuit Court of Mobile County, AL of grand larceny ($192).  He was sentenced to 18 months imprisonment in the Alabama State Penitentiary.  The sentence was suspended and he was placed on 2 years of probation.

8.  The equivalent crime and maximum punishment under The Table of Maximum Punishments of The Manual for Courts-Martial, United States, 1969 (Revised edition) would be: Article 121, larceny of property of a value of more than $100 - dishonorable discharge, reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and 5 years in confinement.


9.  On 13 January 1971, the applicant was convicted by a special court-martial 
of being AWOL from 16 November - 24 December 1970.  His sentence consisted of confinement at hard labor for 31 days and a forfeiture of $50 pay for 2 months. The sentence was approved on 20 January 1971.

10.  On 8 June 1971, the applicant was convicted by a special court-martial 
of being AWOL from 1 March - 8 May 1971.  His sentence consisted of confinement at hard labor for 5 months and a forfeiture of $25 pay for 5 months.  The sentence was approved on 18 June 1971.

11.  A Mental Hygiene Consultation Service Report shows the applicant received an evaluation at the Mental Hygiene Consultation Service, Fort Benning.  The examiner found the applicant was mentally responsible, able to distinguish right from wrong, and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  The examiner found no psychiatric disease.

12.  On 28 June 1971, the applicant notified his commander that he did not intend to appeal his civil conviction.

13.  On 28 June 1971, the applicant's commander advised him that he was being recommended for separation because of misconduct (civil conviction) under the provisions of Army Regulation 635-206 (Personnel Separations).  The commander advised the applicant of his right to:

* have his case considered by a board of officers

* appear in person before a board of officers 

* submit statements in his own behalf

* be represented by counsel

* waive any of these rights 

* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge and request his case be presented before a board of officers.




14.  The applicant waived all of his rights and did not submit a statement in his own behalf.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated separation action and its effect and the rights available to him.

15.  The applicant's commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-206 due to conviction by a civil court.  The commander stated the applicant previously had a discharge pending under the same regulation; however, he went AWOL before the action could be completed.  The commander recommended an undesirable discharge.

16.  On 11 August 1971, the appropriate authority approved the recommendation for separation due to a civil court conviction and directed that the applicant be issued an Undesirable Discharge Certificate.

17.  On 23 August 1971, the applicant was discharged under the provisions of Army Regulation 635-206 due to a civil conviction with an undesirable discharge. He had completed 2 years, 3 months, and 18 days of active service; he also had 271 days of lost time, and 175 days were lost subsequent to his normal expiration of term of service date.  

18.  The applicant's service medical records were not available for review.

19.  On 4 April 1977, the Department of Defense (DOD) directed each armed service to conduct a review of discharges of former service members who were discharged between 9 August 1964 and 28 March 1973, with an undesirable or a general discharge.  This program was titled the DOD Special Discharge Review Program (SDRP).  Compelling reasons to deny a discharge upgrade was a discharge based on an act of misconduct that would be subject to criminal prosecution under civil law.

20.  On 23 September 1977, the ADRB determined the applicant was properly discharged and advised the applicant his request for a change in type and nature of his discharge under the DOD SDRP was denied.

21.  The applicant submitted a letter, dated 12 May 2009, from a co-worker who has known him since 1978.  The co-worker stated the applicant was a good person and has always been respected by his peers.



22.  Section VI (Conviction by Civil Court) of Army Regulation 635-206, then in effect, states, in pertinent part, that an individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year. 

23.  Army Regulation 635-206 also provides that an individual discharged for conviction by a civil court normally will be furnished an undesirable discharge certificate.  An honorable or general discharge certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

24.  Army Regulation 635-200 states 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 his undesirable discharge should be upgraded to a general discharge.  He contends he was suffering from PTSD at the time of his offenses and he has been a model citizen since his discharge.

2.  There is no evidence the applicant was then or is now diagnosed with PTSD.

3.  The applicant's post service achievements and conduct were considered.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

4.  The time the applicant spent in combat, his Combat Infantryman Badge, and his Purple Heart were taken into consideration.  However, his discharge was based on a conviction in civil court due to grand larceny.  His 18 month prison sentence was suspended and he was placed on probation for 2 years.  There is no evidence available to show whether the state of Alabama revoked his probation.  This act of misconduct is a sufficient compelling reason to deny a discharge upgrade.

5.  The applicant was notified of his rights concerning his discharge.  He waived all of his rights and he did not submit a statement in his own behalf.

6.  During his period of service, the applicant accepted NJP on two occasions and he was convicted by three special courts-martial.  The applicant clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a discharge under honorable conditions.  

7.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined the type of discharge and the narrative reason for separation were appropriate considering all the facts of the case.

8.  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 that 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)                                         AR20090016306



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ABCMR Record of Proceedings (cont)                                         AR20090016306



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