IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100001158 


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.

2.  The applicant states that after he returned from the Republic of Vietnam (RVN) he married and was stationed at Fort Hood, Texas.  He claims his young wife was very unhappy with military life and took their infant son and left.  He states he followed her and tried to salvage their marriage and remain a father to their son during the time he was absent without leave (AWOL).  He claims he voluntarily returned to duty and was processed out of the Army.

3.  The applicant points out that his period of AWOL was from 10 February 1969 through 6 April 1969, not the longer period indicated on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He claims he was told to sign a waiver without understanding it would automatically result in receiving an UD.  He states his mistake in judgment was made when he was 19 years old and had recently returned from the RVN.

4.  The applicant states that since his discharge, he has led a trouble-free and productive life.  He indicates he is a member of the Mason's and local veterans' organizations.  He feels he has paid for what was clearly a misguided and youthful decision.  He states he has two sons and grandchildren and would like this black mark on his life's record removed as part of his legacy to them.

5.  The applicant provides the following documents in support of his application:



* DD Form 214
* State of North Carolina Criminal Records Check
* DA Form 20B (Record of Court-Martial)
* five third-party character references and recommendations

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 January 1967.  He was trained in and awarded military occupational specialty 36K (Wireman).  He was promoted to specialist four/E-4 on 8 May 1968 and this is the highest rank he attained while serving on active duty.

3.  The applicant's record shows he served in the RVN from 30 June 1967 through 25 June 1968.

4.  The applicant's record shows was reduced to private/E-1 on 26 November 1968, which is the rank he held at the time of his discharge.  It further shows he earned the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.  His record documents no acts of valor or significant achievement.

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

* 17 February 1967 for being AWOL from 12 to 13 February 1967
* 9 May 1967 for being AWOL from 30 April 1967 to 2 May 1967
* 2 June 1968 for being absent from his place of duty without authority

6.  On 1 July 1969, a special court-martial found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice by being AWOL from 10 February 1969 to 4 June 1969.  The resultant sentence was confinement at hard labor for 3 months and forfeiture of $60.00 per month for 3 months.

7.  On 22 July 1969, the unit commander notified the applicant of his intent to recommend his separation for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  Subsequent to receiving this legal counsel, he waived his right to have his case considered by a board of officers, personal appearance before a board of officers, and counsel.  He also elected not to submit statements in his own behalf.

8.  The unit commander recommended the applicant's separation under the provisions of Army Regulation 635-212 by reason of unfitness.  The commander cited the applicant's habits and traits of character manifested by the repeated commission of petty offenses and habitual shirking as the basis for taking the action.  The separation authority approved the applicant's discharge and on 29 July 1969 the applicant was separated accordingly with a UD.

9.  The DD Form 214 issued to the applicant upon his discharge shows he completed 2 years and 9 days of creditable active military service at the time of his discharge and had accrued 195 days of lost time due to AWOL and confinement.

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 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a 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 general discharge (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.

12.  Army Regulation 635-200 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 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 contentions that his discharge should be upgraded because he did not fully understand the impact of his discharge at the time and because he has been a productive citizen since his discharge have been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The applicant's separation processing 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.  The applicant consulted with counsel and was fully advised of the basis for the contemplated discharge and of its effects.

3.  The applicant's record documents no acts of valor or significant achievement and reveals an extensive disciplinary history that includes his acceptance of NJP on three separate occasions and a special court-martial conviction.  In addition, the record shows he accrued 195 days of lost time due to AWOL and confinement.   In addition, two of those periods of AWOL occurred before he arrived in the RVN.  As a result, the UD he received accurately reflects the overall quality of his service.

4.  The applicant's overall record of service did not support the issuance of a GD or an HD at the time of his discharge and it does not support an upgrade now.

5.  Although 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 and carries with it a presumption of government regularity in the discharge process.

6.  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)                                         AR20100001158



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ABCMR Record of Proceedings (cont)                                         AR20100001158



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