IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090019821 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he served in Vietnam from 1969 to 1970 with the 101st Airborne Division.  He contends that while he was in combat, the 8th Field Hospital told him that he had psychological problems. A psychiatrist at the 106th General Hospital in Japan told him he was suffering from “gross stress reaction of psychotic proportions”. The applicant states that he should not be held responsible for his actions and behavior due to his mental illness.  He believes the discharge he was given of “under other than honorable conditions” was not fair because his psychiatric condition was not taken into account. 

3.  The applicant did not provide any documents in support of his claim. 

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.  On 17 January 1968, the applicant enlisted in the Regular Army for three years under the airborne option.  A copy of his DD Form 214 (Report of Separation from Active Duty) shows he was awarded military occupational specialty 09B (Basic Trainee).  

3.  Item 31 (Foreign Service) of a reconstructed copy of his DA Form 20 (Enlisted Qualification Record) is blank.  Item 38 (Record of Assignment) does not indicate an assignment to Vietnam.

4.  A DA Form 19-32 (Military Police Report) shows that the applicant was Absent without Leave (AWOL) and Dropped from the Rolls (DFR) on 12 March 1971.  On 24 September 1971 the applicant was apprehended for civil charges of two counts of grand larceny, burglary, assault, and possession of a weapon.  The case was adjourned until 12 January 1972 for sentencing and the applicant remanded to the Manh House of Detention under $5000.00 bail. 

5.  On 13 January 1972, the applicant appeared in civil court before a judge and was convicted and sentenced to zero to six years confinement at Ossining Correctional Facility, Ossining, New York. 

6.  On 28 December 1971, the applicant was taken to Onondaga County Court for trial and received a new commitment resentencing him to a minimum of 10-0 years and a maximum of 20-0 years, sentence to be suspended and the applicant was placed on probation for ten years.  Therefore, he was sentenced to “Time Served”, and released by court order on 3 February 1972. 

7.  On 9 June 1972, his command requested he be separated for misconduct under section VI, Army Regulation 635-206 (Personnel Separations: Discharge Misconduct), Conviction by Civil Court.   The applicant was advised of the basis for the separation.  A copy of the “Individual’s Statement” shows the individual did not sign the statement. 

8.  On 5 May 1974, the separation authority approved the request for separation and directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate).  On 21 May 1974, the applicant was discharged accordingly.  He had completed four years and five months of creditable active military service.  He had a total of 704 lost days due to AWOL and Civil Confinement. 

9.  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.

10.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:   (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement n excess of   1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.  

11.  Army Regulation 635-200 sets forth the basic authority 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.

12.  Army Regulation 635-200 also sets forth the basic authority for the separation of enlisted personnel.  It states the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct on the civilian community.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his under other than honorable discharge to an honorable was carefully considered and found not to be supported by the evidence.

2.  The applicant was convicted by a civil court for offensives which were punishable by confinement.  Discharges under the provisions of Army Regulation 635-206 are set forth for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  Based on his record of indiscipline, which includes 704 days of lost time due to AWOL and civil confinement, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his 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)                                         AR20090019821





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ABCMR Record of Proceedings (cont)                                         AR20090019821



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