IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100014143 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* he served with honor in Vietnam
* he would like his discharge changed to a general discharge
* he is currently suffering with several medical conditions (ringing in his ears and post-traumatic stress disorder) and needs medical care from the Department of Veterans Affairs

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 11 April 1967 for a period of 3 years.  He successfully completed his training and was awarded military occupational specialty 11C (infantry indirect fire crewman).  On 13 March 1968, he was honorably discharged for immediate reenlistment.  He reenlisted on 14 March 1968 for a period of 3 years.  He arrived in Vietnam on 31 May 1968.

3.  On 12 October 1968 while in Vietnam, nonjudicial punishment (NJP) was imposed against the applicant for leaving his detail without authority and disobeying a direct order not to associate with any civilians around the fire base.  His punishment consisted of a reduction to pay grade E-3, a forfeiture of pay, and restriction.

4.  Records show the applicant departed Vietnam on 30 May 1969.

5.  On 6 June 1969, the applicant was convicted by a special court-martial of violating a lawful general regulation for possessing a privately-owned .22 caliber pistol while in Vietnam.  He was sentenced to forfeit $67.00 pay per month for 2 months.  On 14 June 1969, the convening authority approved the sentence.

6.  On 28 October 1969, NJP was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

7.  Records show the applicant was absent without leave (AWOL) from
6 through 9 November 1969.  He again went AWOL on 5 January 1970.

8.  On 19 January 1970, the applicant was arrested by civil authorities for armed robbery while in an AWOL status.  On 24 April 1970, he was convicted of robbery by intimidation by the Muscogee Superior Court in Georgia.  He was sentenced to 2 years of confinement.

9.  On 25 August 1970, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for conviction by a civil court.

10.  On 25 August 1970, the applicant waived consideration of his case by a board of officers and he elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued and he understood that as the result of the issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

11.  On 10 September 1970, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.

12.  Accordingly, the applicant was discharged on 18 September 1970 with an undesirable discharge under the provisions of Army Regulation 635-206 for his conviction by a civil court.  He served a total of 3 years, 7 months, and 25 days of creditable active service with 261 days of lost time.

13.  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.

14.  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.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 ABCMR does not correct records solely for the purpose of making the applicant eligible for medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant's record of service during his last enlistment included two NJPs, one special court-martial conviction, and 261 days of lost time.  It appears he also committed a serious civil offense while in the Army.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  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.
4.  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)                                         AR20100014143



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ABCMR Record of Proceedings (cont)                                         AR20100014143



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