BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010142 


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:

* his discharge should be upgraded because of his other stellar service
* he was a prisoner of war (POW) for 11 months in Vietnam

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 enlisted in the Regular Army on 15 February 1966 for a period of 3 years.  He successfully completed basic combat and advanced individual training in military occupational specialty 62F (crane shovel operator).  He arrived in Vietnam on 29 July 1966.

3.  On 29 November 1966 while in Vietnam, nonjudicial punishment (NJP) was imposed against the applicant for leaving his weapon unsecure.  His punishment consisted of a forfeiture of pay.

4.  On 15 June 1967 while in Vietnam, NJP was imposed against the applicant for being absent without leave (AWOL) from 13 June 1967 to 14 June 1967.  His punishment consisted of a verbal reprimand, a forfeiture of pay, restriction, and extra duty.

5.  The applicant was transferred to the United States on 27 July 1967.

6.  There is no evidence of record which shows the applicant was a POW in Vietnam.

7.  On 16 February 1968, the applicant was convicted by a special court-martial of two specifications of AWOL from 25 September 1967 to 6 November 1967 and from 2 December 1967 to 5 January 1968.  He was sentenced to be reduced to pay grade E-1, to be confined at hard labor for 6 months, and to forfeit $68.00 pay per month for 6 months.  On 28 February 1968, the convening authority approved the sentence.

8.  On 21 March 1969, the applicant pled guilty to burglary, robbery, assault with a dangerous weapon, and carrying a concealed deadly weapon in the U.S. District Court, Washington, DC.  He was sentenced to 10 years of confinement in the Federal Youth Center, Ashland, Kentucky.

9.  On 26 January 1970, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for conviction by civil court.  On 26 January 1970, he requested consideration of his case by a board of officers.

10.  A board of officers convened on 6 March 1970 and found that the applicant was undesirable for further retention in the military service because of his conviction by a civil court and recommended that he be discharged from the service for misconduct (conviction by civil court) with the issuance of an undesirable discharge.  On 26 March 1970, the separation authority approved the findings and directed that the applicant be discharged with an undesirable discharge.

11.  Accordingly, the applicant was discharged on 1 April 1970 with an undesirable discharge under the provisions of Army Regulation 635-206 for his conviction by a civil court.  He served 1 year and 8 months of creditable active service with 589 days of lost time.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided for the separation of personnel for conviction by a civil court.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200, 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 record of service included two NJPs, one special court-martial conviction, and 589 days of lost time.  It appears he also committed serious civil offenses while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.



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)                                         AR20100010142



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ABCMR Record of Proceedings (cont)                                         AR20100010142



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