BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000573 


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 his general under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD). 

2.  The applicant provides no statements and/or documents in support of 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’s record shows he enlisted in the Regular Army on 5 February 1964 and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was reclassified into MOS 56A (Supply Handler) on 14 January 1967.  

3.  The applicant’s record shows he served in Germany from 25 June 1964 through 25 May 1966, and in the Republic of Vietnam (RVN) from 4 October 1966 through 28 January 1967.  It further shows he was first promoted to private first class/E-3 (PFC/E-3) on 14 August 1965, and this is the highest rank he attained while serving on active duty.  

4.  The applicant’s record documents no acts of valor or significant achievement.  The record reveals a disciplinary history that includes two court-martial convictions and his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following six separate occasions for the offenses indicated:  

   a.  22 May 1964, for failing to go to his appointed place of duty at the time prescribed;

b.  19 February 1965, for acting disrespectfully toward a sergeant;

c.  5 June 1965, for being apprehended for being drunk and disorderly;

d.  19 June 1965, for disorderly conduct and insubordination;

e.  22 November 1965, for being disrespectful to a sergeant;

f.  21 February 1966, for destroying unit property; and 

g.  6 January 1967, for being absent from his unit in the RVN from 24 to 
25 December 1966.

5.  On 23 October 1964, a special court-martial (SPCM) convicted the applicant of violating Articles, 86, 95, 128, and 134 of the UCMJ as follows:

   a.  Article 86, by being absent without leave (AWOL) from 3 through             4 September 1964;

b.  Article 95, by resisting lawful apprehension;

c.  Article 128, by assaulting a military police officer; and 

d.  Article 134, by unlawfully entering a military installation.  

6.  On 26 November 1966, a summary court-martial (SCM) convicted the applicant of two specifications of violating Article 86 of the UCMJ by failing to go to his appointed place of duty at the time prescribed on 2 and 4 November 1966.  
7.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows “Unsatisfactory” conduct and efficiency ratings during his assignment to Germany for the period 8 May 1965 through 25 May 1966.  It also shows that during his tour in the RVN, he received “Fair” conduct and efficiency ratings for the period of assignment from 4 through 7 October 1966 and “Unsatisfactory” conduct and efficiency ratings during two separate periods of assignment from 8 October through 16 December 1966 and 17 December 1966 through 25 January 1967.

8.  On 3 February 1967, the applicant was released from active duty (REFRAD), in the rank of private/E-1, after completing 2 years, 11 months, and 29 days of creditable active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was separated under the provisions of Army Regulation 635-200, by reason of overseas returnee and received a GD.

9.  Army Regulation 635-200, in effect at the time, provided for the separation of members returning from overseas with less than three months of service remaining until expiration of term of service.  It also stipulated an HD would be issued to members who met the following qualifications:

* has conduct ratings of at least "Good"
* efficiency ratings of at least "Fair"
* not convicted by a general court-martial (GCM)
* not convicted more than once by an SPCM 

10.  The same regulation stated, in effect, members who did not qualify for an HD could be issued a GD unless the disqualifying entries in their service record are outweighed by subsequent honest and faithful service over a greater period of time in which case an HD could still be furnished.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be upgraded to an HD has been carefully considered.  However, the evidence is not sufficient to support this claim.  The regulation in effect at the time authorized the issuance of an HD to members whose conduct ratings were at least "Good" and whose efficiency ratings were at least "Fair" and who were not convicted by a GCM or two or more SPCMs.  It also provided that an HD could still be issued if the disqualifying entries in their service record were outweighed by subsequent honest and faithful service over a greater period of time.



2.  The evidence of record confirms the applicant had HD disqualifying less than "Good" conduct ratings in the RVN between 4 and 7 October 1966 and "Unsatisfactory" conduct and efficiency ratings between 8 October 1966 and 
25 January 1967.  Further, his record reveals an extensive disciplinary history including six NJP actions and convictions by both an SPCM and SCM.  As a result, his disqualifying conduct and efficiency ratings were not outweighed by subsequent honest and faithful service that would have warranted the issue of an HD at the time of his separation or that would support an upgrade of his discharge at this late date. 

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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)                                         AR20100000573



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)