IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100013254 


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 under other than honorable conditions discharge.

2.  The applicant states that his problems began upon returning from Vietnam in 1968.  He was unable to "get his head right," unable to sleep normally, and did not get any help.  After his release from Texas State Prison he got married, finished parole, and he now needs his discharge upgraded to complete his life for his family.

3.  The applicant provides a copy of his DA Form 20 (Enlisted Qualification Record).

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 enlisted in the Regular Army on 26 February 1963.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 120 (Pioneer).  He was honorably discharged for the purpose of immediate reenlistment on 26 March 1964.  He reenlisted on 27 March 1964 and was subsequently awarded MOS 05B (Radio Operator).

3.  Item 31 (Foreign Service) of his DA Form 20 shows he served in Vietnam from 8 March 1967 to 2 March 1968.

4.  His record reveals he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* on 4 December 1965, disorderly conduct
* on 31 October 1966, disrespect to a noncommissioned officer
* on 11 January 1967, misconduct
* on 30 September 1968, failure to repair

5.  On 19 February 1969, he was convicted by a special court-martial for being absent without leave (AWOL) from on or about 18 November 1968 to 9 February 1969.

6.  On 28 November 1969, he was convicted by a special court-martial for two specifications of AWOL from on or about 18 May 1969 to 28 May 1969 and from on or about 9 June 1969 to 8 October 1969.

7.  On 2 March 1970, he was reported AWOL from his unit and he was dropped from the rolls on 1 April 1970.

8.  On 12 February 1973, in Calhoun County District Court, TX, he was found guilty of felony theft and sentenced to 5 years of confinement in the Texas Department of Corrections.  On 6 March 1973, in Wharton County District Court, TX, he was found guilty of theft and sentenced to 5 years of confinement in the Texas Department of Corrections.

9.  On 24 July 1973, he was notified by his commander that discharge action was being initiated against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge - Misconduct), paragraph 33a, for misconduct - civil conviction.

10.  On 24 July 1973, he acknowledged notification of his proposed discharge from the Army.  On 25 July 1973, he consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the possible effects of an under conditions other than honorable discharge, and of the procedures and rights that were available to him.  He further acknowledged he understood if he were discharged under conditions other than honorable he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

11.  On 2 August 1973, his chain of command recommended his separation under the provisions of Army Regulation 635-206, paragraph 33a.

12.  On 10 August 1973, the separation authority approved his discharge under Army Regulation 635-206 and directed the issuance of an Undesirable Discharge Certificate and a reduction in rank to private/E-1.  On 17 August 1973, he was discharged accordingly.

13.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 635-206, section VI, by reason of misconduct (convicted or adjudged a juvenile offender by a civil court during current term of active military service) with an under other than honorable conditions characterization of service.  He completed a total of 5 years, 9 months, and 5 days of creditable active service with 278 days of lost time due to confinement and 1413 days of lost time due to AWOL.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel and establishes policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  A discharge under conditions other than honorable was normally appropriate for a Soldier discharged under this regulation.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.

17.  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 requests that his discharge be upgraded.

2.  Contrary to his contention that his problems began after his return from Vietnam, the evidence of record shows he received NJP on three occasions prior to his service in Vietnam.

3.  The evidence of record shows he demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the two special courts-martial convictions he received for AWOL and the NJP he received on four occasions for disorderly conduct, being disrespectful to an noncommissioned officer, and failure to repair.  In addition, he was convicted by two civil courts for felony theft and theft and sentenced to confinement for 5 years.  Accordingly, his immediate commander initiated separation action against him.

4.  His 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 reason for separation were appropriate considering all the facts of the case.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20100013254



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ABCMR Record of Proceedings (cont)                                         AR20100013254



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