IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000071 


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 to upgrade his undesirable discharge to a general discharge.

2.  The applicant states that he completed 1 year and 6 months of service and he believes he should receive some kind of recognition.  He did not kill, steal or disrespect the staff.  He adds it has been 40 years and he is in need of medical attention because of Post Traumatic Stress Disorder and Agent Orange.

3.  The applicant provides a copy of his expired military identification card, a copy of his identification tags, and eight third-party statements in support of this application.

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 AR20080018669, on 19 March 2009.

2.  The applicant provides eight third-party statements.  These arguments were not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant was inducted into the Army of the United States on 22 April 1969 and upon completion of initial entry training (IET) he was awarded military occupational specialty 63B (Light Wheel Vehicle Repairman).

4.  Prior to completing IET, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 7 July through 13 July 1969.

5.  The applicant arrived in the Republic of Vietnam (RVN) on 7 October 1969.  On 3 June 1970, while in the RVN, he accepted NJP for being in an off-limits area.

6.  The applicant departed the RVN on 6 October 1970.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows his next duty assignment as Fort Bliss, Texas.  However, it appears he did not report to his next duty assignment and he was placed in an AWOL status 11 November 1970.  The DA Form 20 further shows he returned to military control on or about 17 December 1970 and was assigned to the Special Processing Detachment, Headquarters Command, Fort Bliss, Texas, on 19 December 1970.

7.  A DA Form 188 (Extract of Morning Report) indicates the applicant again went AWOL on 8 February 1971 and was dropped from the rolls of the Army on that date.

8.  On 8 July 1971, the applicant was convicted by a civil court of burglary of a motor vehicle.  He was sentenced to 3 years in confinement in the Texas Department of Corrections but this sentence was suspended and he was placed on probation for 3 years.  The applicant violated his probation and was placed in confinement on 21 July 1972.  On 5 September 1972, he was sentenced to confinement in the Texas Department of Corrections for not more than 3 years, with his sentence commencing on 21 July 1972.

9.  The applicant's unit commander notified the applicant that he was recommending that he be discharged under the provisions of Army Regulation 635-206, by reason of civil conviction.  The unit commander also advised the applicant of his right to present his case before a board of officers, or to waive those provisions and submit written statements in his own behalf.  The applicant was also informed that military counsel was made available to him and of his right to employ civilian counsel at no expense to the United States Government if he so desired.  The applicant acknowledged notification and elected to waive his right to present his case before a board of officers.  He elected not to submit statement in his own behalf.  He also acknowledged he understood if he received a discharge under other than honorable conditions he could be deprived of many or all rights as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life as a result of his discharge.  He also completed a statement confirming that he did not intend to appeal his civil conviction.  

10.  On 3 July 1973, the Staff Judge Advocate, after reviewing the applicant's separation action, concluded that the requirements of Army Regulation 635-206 had been met and the information contained warranted separation with an undesirable discharge.

11.  On 3 July 1973, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, due to a civil conviction, and directed that he be issued an Undesirable Discharge Certificate.   On 11 July 1973, the applicant was discharged accordingly.  His DD Form 214 confirms he completed 3 years, 2 months, and 26 days of creditable active military service and that he accrued 357 days of time lost.

12.  There are no acts of valor or significant achievement warranting special recognition documented in the applicant's military record.

13.  The applicant provides eight third-party statements which all attest to his character and support the applicant's discharge upgrade.

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.

16.  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.  The applicant's contention that his undesirable discharge should be upgraded has been carefully reviewed.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The record further shows he accepted NJP punishment on two separate occasions and was convicted by civil authorities of burglary of a motor vehicle and placed on probation.  He violated his probation and was incarcerated.  His record documents no acts of valor or significant achievement or service warranting special recognition.  As a result, it is clear his discharge accurately reflects his overall record of service and he is not entitled to a general discharge.

4.  The eight statements the applicant provided are not sufficiently mitigating to grant the relief requested.

5.  In order to justify correction of a military record the applicant must 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 AR20080018669, dated 19 March 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)                                         AR20100000071



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ABCMR Record of Proceedings (cont)                                         AR20100000071



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