BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000895 


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 undesirable discharge (UD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states he is a better person now given he is not in a terrible place like the Republic of Vietnam (RVN) and afraid of all outcomes.

3.  The applicant provides no documentary evidence 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 was inducted into the Army and entered active duty on 27 May 1968.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).
3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 31 (Foreign Service) that he served in the RVN from 3 November 1968 through 15 June 1969.  Item 33 (Promotions and Reductions) shows he was promoted to private first class/E-3 on 8 November 1968 and that this is the highest rank he held while serving on active duty.  Item 40 (Wounds) shows he was wounded in action in the RVN on 11 December 1968 and item 41 (Awards and Decorations) shows he earned the following awards:

* National Defense Service Medal 
* Vietnam Service Medal
* Purple Heart 
* Army Commendation Medal with "V" Device

4.  Item 44 (Time Lost) of the DA Form 20 shows the applicant accrued 1179 days of lost time during 11 separate periods of absence without leave (AWOL) between 17 February 1969 and 3 July 1972.

5.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on the following three separate occasions for the offenses indicated:

	a.  20 January 1969, for twice failing to go to his appointed place of duty at the time prescribed on 15 and 16 January 1969;

	b.  28 February 1969, for being AWOL from 24 through 28 February 1969; and

	c.  22 March 1969, for being AWOL from 3 through 22 March 1969.

6.  On 8 March 1972 while AWOL, the applicant was convicted of entering to commit a felony in the Superior Court of Allen County, State of Indiana.  He was sentenced to not less than 1 or more than 10 years in prison.

7.  The applicant was notified that action was being initiated to separate him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) by reason of civil confinement and on 4 May 1972 he completed an election of rights.  He waived his right to military counsel and elected not to submit a statement in his own behalf.  He also confirmed he did not intend to appeal his civil conviction.

8.  On 21 June 1972, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-206.  He also directed the applicant be issued a UD and be reduced to the lowest enlisted grade.  On 3 July 1972, the applicant was discharged accordingly.

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant upon his discharge on 3 July 1972 shows he completed 10 months and 15 days of creditable active military service and accrued 1179 days of lost time due to AWOL.

10.  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.

11.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or a GD if it were warranted based on the member's record of service.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b 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 HD.  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 UD should be upgraded because he is now a better person has been carefully considered.  While his post-service conduct may be noteworthy, this factor alone is not sufficient mitigating to support an upgrade of his discharge.

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

3.  Although the applicant was wounded in action and awarded the Purple Heart and Army Commendation Medal with "V" Device, his record reveals a significant disciplinary history that includes his acceptance of nonjudicial punishment on three separate occasions, his accrual of 1179 days of lost time due to AWOL, and the civil court conviction that led to his discharge.  As a result of his extensive record of misconduct, even considering his combat service in the RVN, his overall record of service did not support the issuance of a GD or an HD by the separation authority at the time and does not support an upgrade now.

4.  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)                                         AR20100000895



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)