IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090016528 


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, an upgrade of his undesirable discharge.

2.  The applicant states that when he returned from Vietnam, he suffered from mental exhaustion caused by the horrors of the war.  He also states that his request relies on the decision that former President Carter made in 1972 to upgrade discharges that occurred during the Vietnam era.  

3.  The applicant provides a statement, dated 10 September 2009, 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 records show he enlisted in the Regular Army for a period of 3 years on 12 September 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76S (Auto Repair Parts Specialist).  The highest rank he attained during his military service was specialist four (SP4)/E-4. 

3.  The applicant's records also show he served in Vietnam from on or about 12 March 1970 to 10 February 1971.  His records further show he was awarded the National Defense Service Medal, the Vietnam Campaign Medal with 
1960 Device, one overseas service bar, the Vietnam Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 27 October 1969, at Fort Polk, LA, for being absent without leave (AWOL) during the period from on or about 25 October 1969 through 26 October 1969.  His punishment consisted of a forfeiture of $19.00 pay, 14 days of restriction, and 14 days of extra duty;

	b.  on 15 January 1970, at Fort Leonard Wood, MO, for failing to report at the time prescribed to his appointed place of duty on or about 10 January 1970 and breaking restriction on or about 14 January 1970.  His punishment consisted of a forfeiture of $26.00 pay, 14 days of restriction, and 14 days of extra duty; 

	c.  on 9 March 1970, at the Overseas Replacement Station, Oakland, CA, for being AWOL during the period on or about 12 February through 6 March 1970.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $40.00 pay per month for 2 months, and 30 days of restriction; and 

	d.  on 12 July 1971, at Fort Riley, KS, for being AWOL during the period on or about 1 July 1971 through on or about 2 July 1971.  His punishment consisted of a reduction to private first class (PFC)/E-3 (both suspended for 60 days), a forfeiture of $30.00 pay, 14 days of restriction, and 14 days of extra duty.  Additionally, on 5 August 1971, the suspended punishment was vacated. 





5.  On 30 August 1971, the applicant pled guilty at a summary court-martial to one specification of being AWOL during the period from on or about 23 July through 5 August 1971.  The court sentenced him to a reduction to private (PV2)/E-2 (suspended for 90 days).  The sentence was adjudged and was approved on 30 August 1971.  However, on 22 September 1971, the findings of guilty and sentence were set aside and his rights and privileges were restored.

6.  On 12 January 1972, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful towards a superior noncommissioned officer (NCO) on or about 11 January 1972 and disobeying a lawful order from a superior NCO on or about 11 January 1972.  His punishment consisted of 15 days of restriction, 15 days of extra duty, a forfeiture of $140.00 pay (suspended for 120 days), and a reduction to PV1/E-1 (suspended for 
120 days).  

7.  On 24 January 1972, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period from on or about 29 September 1971 through 8 October 1971.  The court sentenced him to an oral reprimand.  The sentence was adjudged and approved on 24 January 1972.  

8.  On 8 March 1972, court-martial charges were preferred against the applicant for one specification of failing to go at the time prescribed to his appointed place of duty on or about 8 March 1972; one specification of absenting himself from his unit on or about 8 March 1972; two specifications of disobeying a lawful order on or about 8 March 1972; and one specification of being disrespectful in language towards a superior NCO on or about 8 March 1972.  However, there is no evidence in the applicant's records of the disposition of these court-martial charges. 

9.  On 10 March 1972, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. 

10.  On 10 March 1972, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and/or personal appearance before a board of officers, and elected not to submit any statements in his own behalf. 

11.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event he was issued an undesirable discharge.  He further acknowledged he understood that, as a result of the issuance of an undesirable discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could also encounter substantial prejudice in civilian life.

12.  On 10 March 1972, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation
635-212, by reason of unfitness.  The immediate commander recommended the issuance of an Undesirable Discharge Certificate and cited that the applicant had not been an acceptable Soldier.  He was an unreliable and irresponsible individual who needed constant supervision, possessed a negative attitude, and did not meet minimum standards of acceptable conduct.  He often resorted to avoiding work by going AWOL or by just failing to report to duty. 

13.  On 16 March 1972, the applicant's intermediate and senior commanders concurred with the recommendation and recommended the issuance of an Undesirable Discharge Certificate.

14.  On 30 March 1972, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed that the applicant be furnished an Undesirable Discharge Certificate.  Accordingly the applicant was discharged on 7 April 1972.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was issued an undesirable discharge.  He had completed a total of 2 years, 6 months, and 27 days of creditable active military service and he had 119 days of lost time.

15.  The applicant’s medical records are not available for review with this case.

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

17.  The applicant submitted a statement of support, dated 10 September 2009, from a retired State senator who indicates he has known the applicant for over 
30 years and is aware of his medical problems and/or failing health caused by his service in Vietnam.



18.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

19.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

20.  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.

21.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs as required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

22.  Individuals had to apply for consideration by the SDRP, and the program expired on 4 October 1977.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.

2.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he suffered from any medical conditions during his military service or that his multiple instances of AWOL were caused by a medical condition or service in Vietnam.  On the contrary, his misconduct occurred throughout his entire period of military service, which included three instances of NJP, two of which were for being AWOL, prior to his Vietnam service. 

3.  The evidence of record shows the applicant had five instances of NJP, one instance of a special court-martial, and multiple instances of being AWOL.  Accordingly, his chain of command initiated elimination action against him.  The discharge processing was accomplished in accordance with applicable regulations and his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant’s reference to President Carter's discharge program is actually the DOD SDRP, often referred to as the "Carter Program.”  This program mandated an upgrade of administrative discharges if the member met one of the specified criteria such as the completion of a normal tour of duty in Southeast Asia, being wounded in action, award of a military decoration other than a service medal, receipt of an honorable discharge from a previous period of service, or a record of satisfactory military service of 24 months prior to discharge.  There is no evidence the applicant applied for the program, and the program expired on   4 October 1977.  His extensive history of indiscipline and/or misconduct throughout his military service does not support an upgrade of his discharge. 

5.  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 did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable discharge.

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)                                         AR20090016528



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ABCMR Record of Proceedings (cont)                                         AR20090016528



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