IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011758


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 an upgrade of his previously-issued general discharge.

2.  The applicant states, in effect, his discharge was previously upgraded to general under honorable conditions in Indianapolis, IN, but he would like a fully honorable discharge.

3.  The applicant provides a Department of Veterans Affairs letter dated 3 February 2010.

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 for 3 years on 8 January 1968.  He served in Vietnam from on or about 10 June 1968 to 9 June 1969.  He was issued an undesirable discharge for unfitness under the provisions of Army Regulation 635-212 on 2 February 1971.

3.  The applicant had a lengthy history of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for minor military offenses including:

	a.  6 November 1968 – for without proper authority failing to go at the time prescribed to his appointed place of duty on 5 November 1968, for which he received a reduction in rank from private first class (PFC/E-3) to private 
(PV2/E-2) and a forfeiture of $20 pay for 1 month;

	b.  14 December 1968 – for willfully disobeying a lawful order regarding off limits areas on 11 December 1968, for which he received a forfeiture of $20 pay for 1 month;

	c.  1 January 1969 – for being disorderly on 27 December 1968 by throwing objects at Vietnamese civilians while in a moving vehicle, for which he received a forfeiture of $15 pay for 1 month;

	d.  18 March 1969 – for willfully disobeying a lawful order regarding curfew hours at 0230 hours, 15 March 1969, for which he received a forfeiture of 
$30 pay for 1 month;

	e.  3 April 1969 – for willfully disobeying a lawful order on 1 April 1969 by carrying a loaded weapon in the vicinity of the Camp Schmidt (Vietnam) Enlisted Club, for which he received a reduction in rank from private first class (PFC/E-3) to private (PV2/E-2), a forfeiture of $25 pay 1 month, 14 days of restriction; and

	f.  7 April 1969 – for willfully disobeying a lawful order regarding curfew hours from 2330 hours on 2 April 1969 to 0700 hours, 3 April 1969, for which he received a forfeiture of $25 pay for 1 month.

4.  The applicant's records show he had lost time as follows:

* 051 days from 19 July to 7 September 1969
* 264 days from 15 November 1969 to 5 August 1970
* 132 days from 12 August to 21 December 1970

5.  The applicant's records contain a discharge review packet from the Army Discharge Review Board (ADRB).  The packet contains a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) from the applicant, dated 15 June 1975.  On 9 December 1976, the ADRB reviewed the applicant's discharge and directed that his undesirable discharge for unfitness be upgraded to a general discharge for unfitness.  The applicant was informed of the ADRB's decision by letter dated 21 January 1977.

6.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness.  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.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

7.  Army Regulation 635-200 (Personnel Separations) 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his previously-upgraded general discharge be upgraded to fully honorable.  The quality of the applicant's service does not rise to the level acceptable for an upgrade to fully honorable.

2.  The applicant served only 2 years of his 3-year enlistment.  During that time, he repeatedly committed minor acts of indiscipline which adversely affected the morale and discipline of his unit.  He also accumulated 446 days of lost time.  Such behavior is not indicative of fully honorable service.

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)                                         AR20100011758



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ABCMR Record of Proceedings (cont)                                         AR20100011758



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