BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010932 


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 discharge be upgraded to honorable or general.

2.  The applicant states he had 5 years of good service with excellent personal evaluations and had been awarded the Army Commendation Medal and Army Good Conduct Medal.  He did not sign the administrative discharge.  He was suffering from war-related stress and the effects of drugs and alcohol use that started in Vietnam.

3.  The applicant provides no supporting documentation.

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 6 June 1963.  He was honorably discharged for immediate reenlistment on 3 January 1966 and reenlisted on 4 January 1966.

3.  During his first enlistment he qualified as an expert with the carbine, as a sharpshooter with the rifle, and as a marksman with the pistol.  These awards are not listed on his 3 January 1966 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

4.  He was awarded the Army Commendation Medal for meritorious service and was promoted to sergeant/E-5, both on 11 July 1967.  He was awarded the Army Good Conduct Medal on 9 October 1967.

5.  The applicant served in Korea from 21 December 1963 through 22 December 1964 and in Vietnam from 27 July 1966 through 22 July 1967 in military occupational specialty 83F (Offset Pressman).

6.  The applicant is shown as being absent without leave (AWOL) as follows:

* 2-15 August 1968
* 6-7 November 1968
* 21-22 December 1968
* 23 December 1968-27 March 1969

7.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows on:

* 5 May 1967 for failure to go to his place of duty
* 19 August 1968 for 14 days of AWOL
* 29 November 1968 for two periods of AWOL (4 days) and failure to go to his place of duty on two occasions

8.  On 28 March 1969 while in an AWOL status, the applicant was arrested by civilian authorities for armed robbery, conspiracy to commit larceny, and carrying a concealed weapon.  He was convicted of all of the above offenses and sentenced to a period of confinement from 11 months to 3 years.

9.  On 9 June 1969 while physically in civil custody, the applicant requested that he be discharged and stated he would accept any type and characterization of service up to and including a dishonorable discharge.

10.  On 26 November 1969, he was notified of the initiation of the Army's intent to administratively separate him based on his civilian conviction and incarceration.

11.  The applicant responded and waived his rights to a hearing by a board of officers, to have counsel, and to make a statement on his own behalf.

12.  On 27 December 1969, the court-martial convening authority approved the separation and directed the applicant be discharged under conditions other than honorable and issued an Undesirable Discharge Certificate.

13.  The applicant was separated on 6 January 1970 with an undesirable discharge.  He had 2 years, 10 months, and 21 days of creditable service for this period.

14.  The applicant was awarded or authorized or may be authorized the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with four bronze service stars, Korea Defense Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Meritorious Unit Commendation, Expert Marksmanship Qualification Badge with Carbine Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Pistol Bar.  Neither of his DD Forms 214 lists any of his awards.

15.  The Army Discharge Review Board denied the applicant's request for an upgrade on 8 February 1974 and again on 24 March 1981.

16.  Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), then in effect, provided that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted, an undesirable discharge was considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations.  It provides the following information:

	a.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

18.  The Manual for Courts-Martial states that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he had 5 years of good service with excellent personal evaluations and had been awarded the Army Commendation Medal and Army Good Conduct Medal.  He did not sign the administrative discharge.  He was suffering from war-related stress and the effects of drugs and alcohol use that started in Vietnam.

2.  The implication that alcohol or illegal drug use necessarily mitigates both itself and the effects thereof should be rejected.  An indication that intoxication is a legally-inadequate defense, both in the military and in society as a whole, is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholic.

3.  The record does not contain and the applicant has not provided any evidence that he complained of, suffered from, or was treated for any mental or emotional defect or problems while he was serving on active duty.

4.  Further, not only is there no evidence that the applicant was drunk, high, or mentally impaired when he committed armed robbery, he had been AWOL for an extended period prior to his civilian arrest and incarceration.

5.  The discharge proceedings were conducted in accordance with laws and regulations applicable at the time.  The character of the discharge is commensurate with the offence for which he requested discharge and is appropriate for the applicant's overall record of military service during his second enlistment.

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)                                         AR20100010932



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010932



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1