IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100009073 


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 that his undesirable discharge be upgraded.

2.  The applicant states that he was 16 years of age when he joined the Army and 17 years of age when he went to Vietnam.  He further states that he was born in May 1952 and not 26 November 1950 as indicated on his records.  He goes on to state that he did that because he was the oldest of 12 children with no father for help.  He continues by stating that he had no problems in Vietnam.

3.  The applicant provides a copy of a letter of commendation dated 29 October 1969.

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 enlisted in the Regular Army on 5 December 1968 for a period of 3 years and training as a water supply specialist.  He indicated at the time that he was born on 26 November 1950, that his father resided in St. Louis, Missouri, that his mother resided in Mississippi and that he had no siblings. 

3.  He completed his basic training at Fort Campbell, Kentucky and his advanced individual training at Fort Leonard Wood, Missouri before being transferred to Vietnam on 3 June 1969 for assignment to an engineer company as a water supply specialist.

4.  On 10 November 1969, nonjudicial punishment (NJP) was imposed against the applicant for two specifications of failure to go to his place of duty.

5.  On 10 January 1970, NJP was imposed against him for failure to go to his place of duty.

6.  On 24 January 1970, NJP was imposed against him for three specifications of failure to go to his place of duty and one specification of disobeying a lawful order from a superior noncommissioned officer (NCO).

7.  On 26 January 1970, the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record and his failure to respond to repeated counseling sessions.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment.

8.  On 2 February 1970, NJP was imposed against him for failure to go to his place of duty and on the same date the applicant received a rehabilitative transfer to another engineer company.

9.  On 9 March 1970, NJP was imposed against him for failure to go to his place of duty.

10.  On 8 May 1970, NJP was imposed against him for being absent without leave (AWOL) from 24 April to 27 April 1970 and for being absent from his place of duty on 29 April 1970.

11.  He departed Vietnam on 5 June 1970 and was transferred to Fort Hood, Texas.  He arrived at Fort Hood on 3 August 1970.

12.  On 10 August 1970, NJP was imposed against him for two specifications of failure to go to his place of duty and one specification of disobeying a lawful order from a superior NCO. 
13.  On 11 September 1970, the applicant underwent a psychiatric evaluation and was determined to be mentally responsible and able to distinguish right from wrong and to adhere to the right.

14.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) signed by the applicant which indicates that on 1 December 1970 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for unfitness due to his involvement in incidents of a discreditable nature with civil/military authorities.  He had served 1 year, 10 months, and 24 days of total active service and had 54 days of lost time due to AWOL and confinement.  He was also advised on the day of his discharge of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

15.  The applicant applied to the ADRB for an upgrade of his discharge under the Department of Defense (DoD) Discharge Review Program (Special) and requested that his discharge be upgraded to a fully honorable discharge.  On 23 June 1977, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members who established a pattern of shirking or who were involved in frequent incidents of a discreditable nature with civil and/or military authorities, were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

17.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.
012.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service during such a short period of time.

3.  The applicant’s contention that he was 16 years of age when he enlisted has been noted and while he has provided no evidence to support that contention, it is noted that he successfully completed his training without incident and served without incident in Vietnam for 5 months before he began his pattern of misconduct, which is indicative that his age was not a mitigating factor. 

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)                                         AR20100009073





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ABCMR Record of Proceedings (cont)                                         AR20100009073



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