IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090020127 


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, that his undesirable discharge be upgraded to a discharge that will entitle him to benefits from the Department of Veterans Affairs (VA). 

2.  The applicant states that his cousin was killed during his second tour in Vietnam and he was not allowed to leave to go to his cousin’s funeral.  From that point on he lost all respect for the military.  He was very close to his cousin.  He went absent without leave (AWOL) and never looked back.  He continues by stating that he was depressed and he was not thinking clearly at the time of his discharge.  He also states that he did not understand what he was giving up and waived his rights just to get out; however, someone should have recognized that he was not in his right mind.  He further states that he and his children have suffered medical issues due to his exposure to Agent Orange.  He hopes to receive benefits from the Government that he believes are due him.

3.  The applicant provides a one-page letter explaining his application.

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 was born on 22 September 1946 and was inducted with a moral waiver on 18 January 1966.  He completed his basic training at Fort Bliss, Texas and his advanced individual training as an infantry direct fire crewman at Fort Polk, Louisiana.

3.  On 27 June 1966, he was transferred to Vietnam for duty as an infantryman.  However, on 1 September 1966, he was reassigned to a supply and transportation unit for duty as a storage specialist.  He was subsequently reclassified as an equipment storage specialist.

4.  On 22 April 1967, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.

5.  On 5 June 1967, he was convicted by a special court-martial of assaulting another Soldier.  He was sentenced to confinement at hard labor for 6 months, reduction to the pay grade of E-1, and a forfeiture of pay.

6.  He departed Vietnam on 16 August 1967 and was transferred to Fort Meade for assignment to a Repair Parts Company.

7.  On 9 October 1967, NJP was imposed against the applicant for being AWOL from 23 September to 30 September 1967.  His punishment consisted of an oral reprimand, a forfeiture of pay, extra duty and restriction.

8.  The applicant went AWOL on 31 October 1967 and remained absent in desertion until he was apprehended by civil authorities and was returned to military control at Fort Stewart, Georgia on 7 April 1968 where charges were preferred against him.

9.  On 24 May 1968, he was convicted by a special court-martial of the AWOL charges and was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.





10.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the VA in Manchester, New Hampshire on 17 September 1985.  However, his records do contain a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was issued an undesirable discharge on 18 July 1968, under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 8 months, and 7 days of total active service and he had 295 days of lost time due to being AWOL and in confinement.

11.  The applicant’s records also contain a statement submitted by the applicant in which he indicated that he had been messed over since being in the Army.  He had not been able to get along with any of the officers or noncommissioned officers and he was at the point where all he wanted to do was pop pills and drink liquor.  He stated that the Army was one big prison to him and he would never be of any use to the Army.

12.  The applicant's records also show he was advised of his right to apply to the Army Discharge Review Board for an upgrade of his discharge.  However, there is no evidence in the available records to show he ever applied to that board within its 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that members who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 sets forth the basic authority 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would have jeopardized his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service.

3.  The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record.  Accordingly, after considering the available circumstances of this case, there appears no basis to warrant an upgrade of his discharge.

4.  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 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)                                         AR20090020127



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ABCMR Record of Proceedings (cont)                                         AR20090020127



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