IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090016516 


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, upgrade of his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he regrets his actions; however, he believes insufficient effort was made to rehabilitate him.  He also indicates he received the Purple Heart (PH) and his combat experience led to some of his misbehavior.

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 23 June 1970; a DA Form 2496-1 (Disposition Form), subject:  Separation Under AR [Army Regulation] 635-212, dated 20 May 1970; and a Standard Form (SF) 502 (Clinical Record-Narrative Summary), dated 2 July 1967, in support of his request.

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 Regular Army and entered active duty on 16 May 1966.  He completed basic combat training at Fort Riley, Kansas and advanced individual training (AIT) at Fort Sam Houston, Texas.  Upon completion of AIT, he was awarded military occupational specialty 91A
(Medical Corpsman).  The highest rank he attained while serving on active duty was specialist four/E-4 (SP4).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in item 31 (Foreign Service), that he completed two tours of duty in the Republic of Vietnam (RVN).  The first from 10 January to 8 December 1967 and the second from 
22 July 1968 to 10 February 1969.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM) with Device (1960), Combat Medical Badge (CMB), PH, Army Commendation Medal (ARCOM), 2 Overseas Service Bars, Vietnam Unit Award [sic], and the Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.

5.  Item 43 (Remarks) of the DA Form 20 shows on 13 December 1967, while on authorized leave, the applicant was arrested by civilian authorities in Keosauqua, IA, and charged with lascivious acts with children.  It also shows that he was convicted of this offense on 8 January 1968 and he was sentenced to 1 year confinement, of which 6 months was suspended.

6.  The applicant’s Official Military Personnel File (OMPF) includes a DA Form 2800 (CID [Criminal Investigation Division] Report of Investigation), dated 
22 January 1968, which includes the statement submitted by the applicant at the time.  In his statement, the applicant admitted to committing the charged offense.

7.  Item 44 (Time Lost) of the applicant's DA Form 20 shows he accrued 382 days of time lost during the following separate periods for being absent without leave (AWOL) and in confinement:  18 November  to 28 December 1966; 
10 January to 14 June 1968; 3 June to 9 June 1969; 11 June to 9 October 1969; 
3 to 12 November 1969; 18 to 20 November 1969; 30 November to 14 December 1969; and 8 April to 5 May 1970.

8.  A DA Form 20B (Insert Sheet to DA Form 20-Record of Court-Martial Conviction) shows that on 14 December 1966, a summary court-martial (SCM) found the applicant guilty of being AWOL from 17 November to 14 December 1966.  The resultant sentence was a confinement at hard labor for 1 month and a forfeiture of $67.00 for 1 month.

9.  The DA Form 20B also shows on 26 August 1969, a special court-martial (SPCM) found the applicant guilty of two specifications of AWOL for the following periods:  3 to 10 June 1969 and 11 to 25 June 1969.  The resulting sentence was confinement at hard labor for 3 months.

10.  The applicant's record shows that he accepted non-judicial 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:  
1 May 1969, for two offenses of failing to go at the time prescribed to his appointed place of duty on 29 April 1969; 7 May 1969, for failing to go at the time prescribed to his appointed place of duty on 3 and 4 May 1969; and
18 November 1969, for being AWOL from 3 to 18 November 1969.

11.  On 25 February 1970, the applicant underwent a psychiatric evaluation.  The examining psychiatrist diagnosed the applicant with an inadequate personality, chronic, severe, manifested by repeated AWOL’s, faulty judgment, poor motivation, non-commitment to productive goals, and lack of response to rehabilitative efforts.  He further indicated that the applicant could not be rehabilitated to the extent that he could become an effective Soldier and recommended he be administratively separated under the provisions of Army Regulation 635-212, and consideration be given for a GD due to his RVN service.

12.  The psychiatrist further confirmed 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.  He had no disqualifying defects sufficient to warrant disposition through medical channels.

13.  On 12 May 1970, the applicant’s unit commander initiated separation action against him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  He cited the applicant’s committed offenses which totaled 381 days of time lost and the psychiatric evaluation as the basis for his action.  The commander also indicated that the applicant’s continued discreditable conduct outweighed consideration of discharge for character and behavior disorders only and further recommended he receive a UD.

14.  On 20 May 1970, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to representation by counsel.  He further elected not to make a statement in his own behalf.

15.  On 8 June 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed the applicant receive a UD.  On 23 June 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 3 years, 6 months, and 21 days of creditable active military service and that he accrued 382 days of time lost.

16.  There is no evidence of record to show that the applicant ever submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or GD if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members being separated under these provisions.

18.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7b provides 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 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 contentions that his UD should be upgraded to a GD because he received the PH and because the injuries he suffered in combat led to his misbehavior were carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly advised by his commander that separation action was being initiated and that he was afforded the opportunity to consult with counsel and to have his case considered by a board of officers.


3.  The record further shows that after being counseled on his rights, the applicant voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Notwithstanding the applicant's PH award and combat service, his record documents an extensive disciplinary history that includes SPCM and SCM convictions, a civil conviction for lascivious act with a child, and three records of NJP.  As a result, it is clear his UD accurately reflects the overall qualify of his service.  It is also clear his record did not support the issuance of a GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

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)                                         AR20090016516



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ABCMR Record of Proceedings (cont)                                         AR20090016516



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