IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100007748 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  He states he was discharged from active duty in 1972 because he failed a unit drug test while serving in the Republic of Vietnam.  He contends that he was only 18 years old at the time and did not know any better.  He concludes by stating that he served in the Republic of Vietnam and he has been a good citizen since he was discharged.

3.  He provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 born on 11 May 1953 and enlisted in the Regular Army at the age of 17 years, 8 months, and 19 days.  Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 57E (Laundry, Bath, and Impregnation Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of separation, he held the rank/grade of private/E-1.

3.  His record shows he served in the Republic of Vietnam during the period 3 August 1971 through 12 April 1972.

4.  His record reveals a disciplinary history that includes adverse counseling sessions on numerous occasions for the following offenses:

* Missing guard mount and other unit accountability formations
* The dangers of drugs
* Being absent without leave (AWOL)
* Failure to sleep in the barracks
* Visiting off-limits locations
* The poor appearance of his uniform
* Failure to write home
* An administrative separation

5.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on seven occasions for the following offenses:

* Dereliction in the performance of his duties on two occasions
* Failure to go to his appointed place of duty at the time prescribed on three occasions
* Failure to obey a lawful order issued by his commanding officer
* Being intoxicated and in no condition to perform his assigned duties
* Absenting himself from his unit without authority

6.  Evidence also shows he tested positive on two urinalyses for use of heroin and was referred to the drug treatment center for counseling and rehabilitation.

7.  On 23 February 1972, a Bar to Reenlistment was approved to prevent the applicant from reenlisting in the U.S. Army.  The catalysts for this action were the aforementioned offenses, to include habitual tardiness and a shirking attitude towards the performance of his duties.


8.  The applicant's first sergeant and company commander arranged to have him transferred to the U.S. Army Drug Abuser Holding Center, Vietnam on 14 March 1972, and recommended initiation of administrative elimination from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), due to unfitness.  

9.  On 8 April 1972, the Commander of the U.S. Army Drug Abuser Holding Center, Vietnam, notified the applicant that action was being initiated to separate him under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The applicant was informed that the basis for the recommendation was his history of incidents of a discreditable nature, including conduct rendering him subject to punitive action.  The applicant did not respond to rehabilitative efforts and the commander concluded the applicant had not been amenable to correctional treatment because he habitually shirked his duties and showed an overall disregard for military authority.  The applicant was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.

10.  On 10 April 1972, the separation approval authority waived further rehabilitation requirements and approved that the applicant be discharged with an Undesirable Discharge Certificate.

11.  The applicant's DD Form 214 for the period ending 10 May 1972 confirms he was discharged accordingly.  

12.  On 19 November 1973, a representative of The Adjutant General of the Army informed the applicant that the Army Discharge Review Board (ADRB), after careful consideration of his records and all other available evidence, had determined that he was properly discharged.  Accordingly, the Secretary of the Army directed that he be advised that his request for change in the type and nature of his discharge had been denied.

13.  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 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge 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.

15.  Army Regulation 635-200, 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 to an honorable discharge was carefully considered and determined to lack merit.

2.  His record reveals a disciplinary history that includes numerous adverse counseling sessions and acceptance of NJP under the provisions of Article 15 of the UCMJ on several occasions.

3.  His record shows he was nearly 18 years of age at the time of his enlistment and he was 18 and 19 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

4.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.




5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge.

6.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general or an honorable discharge.

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)                                         AR20100007748



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)