IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100015327 


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, through his Member of Congress, an upgrade of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states his periods of unauthorized absence occurred after his return from Vietnam and several of those periods were due to the illness of his mother.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter 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 records show he enlisted in the Regular Army on 12 September 1967 and held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained during his military service was private first class/E-3.

3.  His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), prior to his service in Vietnam, as follows:

* On 30 September 1967, for disobeying an order
* On 26 February 1968, for insubordination

4.  On 10 September 1968, he was convicted by a special court-martial at Fort Carson, CO, of one specification of being absent without leave (AWOL) from 28 July to 14 August 1968.  The court sentenced him to confinement at hard labor and a forfeiture of pay.  The convening authority approved his sentence on 10 September 1968.

5.  On 22 January 1969, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 21 November 1968 to 14 January 1969.

6.  His records also show he served in Vietnam from on or about 14 March 1969 to on or about 29 March 1970.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Purple Heart, Army Commendation Medal with "V" Device, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification badge with Rifle Bar, and 2 overseas service bars.

7.  On 9 October 1969, he was convicted by a special court-martial in Vietnam of one specification of willfully disobeying a lawful order and one specification of wrongfully violating a general regulation.  The court sentenced him to confinement at hard labor, a forfeiture of pay, and a reduction to the lowest enlisted grade.  The convening authority approved his sentence on 12 November 1969 but suspended the confinement for 3 months.

8.  On 9 March 1970, he was again convicted by a special court-martial in Vietnam of one specification willfully and wrongfully discharging his M-16 rifle under circumstances such as to endanger human life.  The court sentenced him to a bad conduct discharge.  The convening authority approved his sentence on 7 April 1970.

9.  On 1 September 1970, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  On 16 September 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 7 May 1970 to 4 September 1970.

11.  Headquarters, 1st Armored Division, Fort Hood, TX, Special Court-Martial Order Number 8, dated 19 November 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

12.  However, at the time the bad conduct discharge was ordered executed, the applicant was in a deserter status.  He returned to military control on 6 July 1971.

13.  On 14 July 1971, court-martial charges were preferred against him for one specification of being AWOL from 28 December 1970 to 6 July 1971.  However, the disposition of those charges is unclear.

14.  On 2 August 1971, his immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) by reason of unfitness citing the applicant’s repeated commission of discreditable incidents with military authorities.  The immediate commander further recommended an Undesirable Discharge Certificate.

15.  On 5 August 1971, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He requested consideration of his case by a board of officers and  personal appearance before a board of officers.

16.  On 6 August 1971, his intermediate commander recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.  He also stated the applicant was pending court-martial charges and that the charges would be dropped upon approval of the discharge.


17.  On 1 September 1971, the applicant again consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and submitted a statement in his own behalf wherein he stated that he felt he had to leave because his sister was involved with narcotics. 

18.  On 8 September 1971, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate.  On 24 September 1971, the applicant was accordingly discharged from the Army.  

19.  The DD Form 214 he was issued confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 2 years, 11 months, and 8 days of creditable active military service and had 205 days of lost time prior to expiration of his term of service (ETS) and an additional 190 days of lost time subsequent to his ETS.

20.  On 20 May 1977, the Army Discharge Review Board (ADRB) reviewed his discharge under the provisions of Public Law 95-126 and determined the characterization of service was warranted under DOD Special Discharge Review Program, dated 4 April 1977.

21.  Accordingly, his DD Form 214 was voided and he was reissued a new DD Form 214 that reflected a general character of service.

22.  On 15 August 1978, the ADRB re-reviewed his discharge and determined he did not qualify for an upgrade. 

23.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:

* frequent incidents of a discreditable nature with civil or military authorities 
* sexual perversion 
* drug addiction 
* an established pattern of shirking
* an established pattern showing dishonorable failure to pay just debts
24.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

25.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

26.  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.

27.  On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and
28 March 1973.  This program, known as the DOD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

28.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records reveal an extensive history of indiscipline and/or misconduct including four instances of NJP, three courts-martial, and an extensive history of AWOL.  His misconduct started prior to his Vietnam service and continued during and after this service.  Accordingly, his chain of command initiated administrative separation action against him even though his punitive sentence to a bad conduct discharge had been approved through appellate action.  His discharge was in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence in the available records and he did not provide any evidence that warrants and upgrade of his discharge.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable 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)                                         AR20100015327



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ABCMR Record of Proceedings (cont)                                         AR20100015327



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