BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090021989 


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 reconsideration of his earlier request that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he served in the Republic of Vietnam (RVN) and after being wounded in action and hospitalized for almost five months, he was assigned to Fort Riley, Kansas.  He claims he was promoted to specialist four (SP4)/E-4 in the RVN but he had no records; his chain of command at Fort Riley didn’t believe him.  Later he began getting no pay and the only payment made was the allotment to his wife.  He states it was difficult to understand why he could get no assistance from his chain of command and as a result of this poor treatment he became a Soldier with a bad outlook and wanted out of the Army, which eventually happened.

3.  The applicant states he has been angry about the way the Army has treated him for the past 40 years and recently he was encouraged by a Department of Veterans Affairs (VA) service officer to get this corrected.  He claims he recently got his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) corrected to add his Purple Heart (PH) and other awards he was eligible for and the PH certificate notes he was a SP4/E-4.  

4.  The applicant finally states he was a good Soldier but he was treated terribly.  This resulted in the development of a bad attitude because he and his wife were unable to survive.  He claims his chain of command accused him of lying and being a bad Soldier, even though he was recovering from the wounds he received in action.  He would appreciate a review of his records.   
5. The applicant provides the following documents in support of his application:

* Self-Authored Letter
* DD Form 214 
* DD Form 215 (Correction to DD Form 214)
* PH Certificate showing he was a SP4 at that time
* Congressional Inquiry Packet

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090004302, on 18 August 2009.

2.  During its original review of the case, the Board found no evidence of error or injustice related to the applicant’s discharge processing and finally concluded the applicant’s UD accurately reflected his overall record of service.  The applicant provides a self-authored statement with his reconsideration request indicating he was treated unfairly and his overall record of service supported an upgrade of his discharge.  No new documentary evidence was provided; however, the applicant makes a new argument that requires reconsideration of his case.

3.  The applicant’s record shows he initially enlisted in the Regular Army (RA) and entered active duty on 8 February 1966, and was initially trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  On 4 June 1967, he was honorably discharged for the purpose of immediate reenlistment, and on 5 June 1967, he reenlisted in the RA for 3 years and continued serving on active duty. 

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN during the following periods:  22 September 1966 through
30 January 1967 and 6 October 1967 through 16 February 1968.  The record shows he earned the following awards:

* National Defense Service Medal (NDSM)
* Purple Heart (PH)
* Vietnam Service Medal (VSM) with 3 bronze service stars
* RVN Campaign Medal (RVNCM) with Device 1960
* RVN Gallantry Cross with Palm Unit Citation
* RVN Civil Actions Honor Medal (RVNCAHM) First Class Unit Citation
* Presidential Unit Citation
* Combat Infantryman Badge
* Marksman Marksmanship Qualification Badge with Rifle Bar
5.  The applicant’s disciplinary record shows he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:

a.  3 January 1967, for writing a letter while posted as a sentinel;

b.  16 January 1967, for being derelict in the performance of his duty by 
negligently disobeying a lawful general order;

c.  21 February 1967, for disorderly conduct and for being incapable of 
performing his duties as a result of previous indulgence in intoxicating liquor;

d.  23 June 1967, for two specifications of failing to go to his appointed place 
of duty at the time prescribed on 10 and 11 June 1967; and

e.  24 June 1968, for disobeying a lawful order while on guard duty on 
22 June 1968.  

6.  The applicant’s disciplinary record also shows on 21 March 1967, he was convicted by a summary court-martial (SCM) of breaking restriction on 
25 February and 3 March 1967; and of being disorderly in a public place on 
25 February 1967.  

7.  The applicant arrived at Fort Riley on 28 March 1968.

8.  On 18 January 1969, a special court-martial (SPCM) convicted the applicant of being disrespectful towards a superior noncommissioned officer on                12 December 1968 and of being absent without leave (AWOL) from 8 through   11 January 1969.  

9.  On 17 December 1968, the applicant’s commander recommended that he be barred from reenlistment.  The commander cited the applicant’s habitual misconduct.  The applicant acknowledged that he read and understood the allegations made by his commander and he elected not to make a statement in his own behalf.  On 13 January 1969, the appropriate authority approved the bar to reenlistment. 

10.  The record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing.  The record does contains a properly-constituted DD Form 214 that shows on 9 May 1969, the applicant was discharged, in the rank of private/E-1, under the provisions of Army Regulation 635-212, by reason of unfitness.  It further shows he completed 1 year, 10 months, and 23 days of creditable active military service during the period covered by the DD Form 214 and a total of 3 years, 2 months, and 
20 days of creditable active military service. 

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

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and 
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a GD or honorable discharge (HD) if warranted by the member's record of service; however, when separation for unfitness was warranted, a UD was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that an HD 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.

14.  Paragraph 3-7b of the same regulation 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 contention his discharge was unjust and does not reflect his overall record of service has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The applicant's record is void of a complete separation packet containing all the facts and circumstances surrounding his discharge processing, the record does include a properly-constituted DD Form 214 that identifies the authority and reason for his discharge.  This document carries with it a presumption of Government regularity in the discharge process.  Absent evidence to the contrary, it is presumed his separation processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  The applicant's record includes two tours of duty in the RVN and he was wounded in action.  He also had an extensive disciplinary history that began well before he arrived at Fort Riley and that includes his acceptance of NJP on five separate occasions and both a SCM and SPCM convictions.  As a result, the UD he received accurately reflects the overall quality of his service.  His service did not support the issuance of a GD or HD at the time of his discharge and it does not support an upgrade at this time.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090004302, dated 18 August 2009. 




      _______ _  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)                                         AR20090021989



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ABCMR Record of Proceedings (cont)                                         AR20090021989


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