BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100014280 


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.  In effect, he requests that his upgraded discharge be affirmed.

2.  The applicant states he needs veterans' benefits.  He adds he fought in Vietnam for the short time he was there.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) which was upgraded under the Department of Defense (DOD) Discharge Review Program (Special); a letter forwarding a DD Form 215 correcting the applicant's Social Security Number; a letter from a transition manager, dated 
19 March 2010; and documents from the Department of Veterans Affairs (VA).

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 military records show he enlisted in the Regular Army on 
31 January 1968, was awarded the military occupational specialty of light weapons infantryman, and served in Vietnam (exact dates unknown).

3.  On 2 October 1968, while assigned to Vietnam, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order and being disrespectful in language towards a noncommissioned officer.

4.  On 23 December 1968, while assigned to Vietnam, the applicant again accepted NJP for being absent without leave from 19 to 20 December 1968 and for disobeying a directive by entering an off-limits area.

5.  While in Vietnam, on 16 January 1969 the applicant was convicted by a special court-martial for:

* being AWOL from 2 to 3 January 1969
* violation of a general regulation in that he had in his possession 26 tablets of Binoctal, a combination of secobarbital and amobarbital
* escaping from the custody of two captains on 3 January 1969
* wrongfully appropriating a .45 caliber pistol, the property of the U.S. Government
* assaulting a private first class by striking him with his fists
* wrongfully communicating a threat to injure a noncommissioned officer by saying "I will get you if it takes me the rest of my life"

6.  On 27 January 1969, the applicant was given a psychiatric evaluation.  While the applicant was determined to have a passive-aggressive personality, he was determined to be medically qualified.

7.  On 7 July 1969, the applicant signed a statement in which he said he had been interviewed by the Staff Judge Advocate (SJA) who told him it was the intent of the commanding general to offer him another chance to be a good Soldier and honorably serve out his time in the Army.  The applicant said he told the SJA that he did not want any more chances, he would not do any more for the Army, and he wanted out of the Army regardless of the type of discharge he may receive.

8.  On 21 July 1969, the applicant waived his rights in conjunction with his commander's intent to recommend him for discharge due to unfitness.


9.  On 13 July 1969, the applicant's commander recommended his discharge for unfitness.  In that recommendation the commander attached a statement in which he said the applicant had been transferred to his unit while he was pending court-martial for a narcotics charge in an attempt to separate a group of trouble makers in another unit.  Upon his arrival, the applicant said that he had learned his lesson and performed his duties in an outstanding manner.  Three weeks later, while a member of the reinforcing element on a bridge in Vietnam, he approached his platoon sergeant and told him that he had to leave the bridge to find a girl and get a supply of narcotics.  The platoon sergeant talked him out of leaving at that time but the applicant departed that night.  He returned the following day.  Three days later, the applicant gave some narcotic pills to a fellow Soldier just prior to going on ambush under the pretense that the pills would keep him awake.  The fellow Soldier soon fell into a stupor and had to be carried into his unit's final ambush position.

10.  The document approving the applicant's discharge is not contained in his records.  However, on 3 September 1969, he was given an undesirable discharge by reason of unfitness.  

11.  The applicant's undesirable discharge was upgraded to general under honorable conditions under the DOD Discharge Review Program (Special).  However, when it was later reviewed under uniform standards, the upgraded discharge was not affirmed.  As such, his upgraded discharge did not change his eligibility for benefits from the VA.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of 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; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has stated there are two reasons to upgrade his discharge:  the first is that he needs VA benefits; the second is that he fought in combat in Vietnam.
2.  The ABCMR does not change a properly-issued discharge for the sole purpose of establishing entitlement to benefits from another agency.

3.  While the applicant was on combat operations in Vietnam, he accepted NJP and he was convicted of six offenses by a special court-martial.  In addition, he once left his post while on a combat operation to find a girl and narcotics.  He also gave a fellow Soldier a narcotic while on an ambush which rendered that Soldier a liability instead of an asset.  

4.  It is also noted that when the commanding general offered the applicant another chance to be a good Soldier and honorably serve out his time in the Army the applicant said he did not want any more chances, he would not do any more for the Army, and he wanted out of the Army regardless of the type of discharge he may receive

5.  In view of the foregoing, there is no basis to grant the applicant's request.

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)                                         AR20100014280



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ABCMR Record of Proceedings (cont)                                         AR20100014280



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