IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018398 


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 an upgrade of his undesirable discharge to a general under honorable conditions discharge.

2.  The applicant states he did some bad things during his military service and that they were all of his own doing.  He questioned orders, was convicted by a special court-martial for smoking marijuana, and served a sentence in prison.  After he was released from prison, an Army psychiatrist recommended his release from the Army because the psychiatrist believed that he was unable to handle military life.  But his chain of command did not stand for this recommendation and sent him to Vietnam instead.  While in Vietnam, he was absent without leave (AWOL) with other Soldiers.  Upon his return, his case was dismissed by a court-martial.  He tried to be a better Soldier but his company commander was angry because he was not convicted for his AWOL offense.  Then, one morning, his company commander and military police broke into his hooch, threw drug paraphernalia at him, handed him some papers, and gave him a choice to sign the papers or go to Leavenworth.  He signed the papers because he was afraid to go to jail at his young age.  However, since his discharge, he has been a good citizen, a hard worker, and a family man.

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 7 November 1970; a copy of his discharge approval document, dated 3 November 1970; a copy of a medical consultation sheet, dated 21 July 1970; a copy of his State Commercial Driver License; and two character reference letters.

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 on 7 November 1967 and held military occupational specialty (MOS) 62E (Construction Machine Operator).  He was honorably discharged on 7 July 1968 for the purpose of immediate reenlistment.  He reenlisted on 8 July 1968 for a 3-year term.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  His records show he served in Germany from 24 March 1968 through 
20 November 1969 and Vietnam from 5 January 1970 through 5 November 1970.  His awards and decorations include the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).

4.  On 4 October 1968, in a special court-martial (SPCM) proceeding in Germany, he pled not guilty but was found guilty of one specification of being AWOL from on or about 16 August 1968 to on or about 25 August 1968.  The court sentenced him to reduction to private (PV1)/E-1, restriction for 60 days, and forfeiture of $50.00 pay per month for 2 months.  The approving authority approved his sentence on 9 October 1968.

5.  On 28 April 1969, in an SPCM proceeding in Germany, he pled guilty to wrongfully possessing marijuana on or about 19 March 1969.  The court sentenced him to confinement at hard labor for 6 months, forfeiture of $91.00 pay per month for 6 months, and reduction to PV1/E-1.  However, on 29 April 1969, the convening authority approved a sentence of reduction, confinement at hard labor for 3 months, and a forfeiture of $91.00 pay per month for 3 months.  Furthermore, on 11 June 1969, the unexecuted portion of the sentence was remitted effective 19 June 1969.

6.  His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 10 July 1969, in Germany, for failing to go at the time prescribed to his appointed place of duty on or about 10 July 1969.  His punishment consisted of 7 days of extra duty.

	b.  On 23 February 1970, in Vietnam, for disobeying a lawful order.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended for 30 days), forfeiture of $30.00 pay per month for one month, and 14 days of extra duty and restriction.  On 3 March 1970, the suspended reduction was vacated and ordered executed.

	c.  On 22 April 1970, in Vietnam, for failing to go at the time prescribed to his appointed place of duty on two separate occasions.  His punishment consisted of reduction to PV1/E-1, forfeiture of $30.00 pay per month for one month, and
14 days of extra duty and restriction.

	d.  On 7 October 1970, in Vietnam, for being AWOL on or about 7 October 1970.  His punishment consisted of reduction to private (PV1)/E-1, forfeiture of $25.00 pay per month for one month, and 14 days of extra duty and restriction.

7.  On 7 October 1970, he underwent a psychiatric evaluation and was noted for his immature personality, aggressiveness, and defiance of authority.  The psychiatrist cleared him for separation from the military under the provisions of Army Regulation 635-212 (Personnel Separations - Unfitness and Unsuitability).

8.  On 10 October 1970, his immediate commander initiated separation action against him in accordance with Army Regulation 635-212 by reason of unfitness, citing his prior court-martial convictions, NJPs, and his continuous disciplinary problems and habitual misconduct.  He recommended an Undesirable Discharge Certificate.

9.  On an unknown date in October 1970, he acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation 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 further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all 

benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.

10.  On 17 October 1970, the immediate commander forwarded his recommendation for separation by reason of unfitness to the next level commander.

11.  On 22 and 26 October 1970, his intermediate and senior level commanders recommended approval of the applicant's discharge with an Undesirable Discharge Certificate based on his habits and traits of character manifested by frequent incidents of a discreditable nature with military authorities, addiction to narcotics, and his pattern of shirking his duties.

12.  On 3 November 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate.  On 7 November 1970, the applicant was accordingly discharged from the Army.  His DD Form 214 confirms he was discharged with a character of service of under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  This form further confirms he completed a total of 2 years, 10 months, and 25 days of creditable active military service and he had 36 days of time lost.

13.  On 27 June 1973, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  He submitted the following documents:

	a.  An undated statement from a former supervisor who describes the applicant as a good worker and an honest man.

	b.  A statement, dated 29 September 2009, from a co-worker who describes him as a good friend and a helpful person.

15.  Army Regulation 635-212, then in effect, set forth the policy for the administrative separation for unfitness and unsuitability.  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
* An established pattern showing dishonorable failure to pay just debts

16.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 a general under honorable conditions discharge.

2.  His records reveal an extensive history of indiscipline and/or misconduct including four NJP's, two SPCM's, and a history of AWOL and drug abuse.  Accordingly, his chain of command initiated separation action against him.  His discharge was in accordance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, he must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement.

4.  Based on his record of indiscipline, his 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, he is not entitled to a general under honorable conditions 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)                                         AR20090018398



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ABCMR Record of Proceedings (cont)                                         AR20090018398



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