IN THE CASE OF:	  

		BOARD DATE:	    16 February 2011

		DOCKET NUMBER:  AR20100020859 


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 undesirable discharge to an honorable discharge.

2.  He states he was erroneously charged with being absent without leave (AWOL) when, in fact, he suffered a head concussion from a grenade attack while serving in the Republic of Vietnam in the vicinity of Chu Lai.  He also states he has no medical records of the incident, but he was seen by medical personnel for his concussion injury in Chu Lai in 1971.

3.  He provides no additional evidence.

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.  His record shows he was inducted into the Army of the United States on 17 March 1970.  The highest rank/grade he attained while serving on active duty was private/E-2.  However, at the time of separation, he held the rank/grade of private/E-1.

3.  His record shows he served in the Republic of Vietnam during the period 31 August 1970 through 17 May 1971.

4.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the following offenses:

* Failure to obey a lawful order issued by a superior noncommissioned officer
* Absenting himself from his unit without authority from 30 June to 7 July 1970

5.  His record also shows he was arraigned and tried by a special court-martial which found him guilty of committing the following offenses:

* Absenting himself from his unit without authority from 2 October to 4 October 1970
* Failure to obey a lawful order issued by a superior commissioned officer
* Failure to obey a lawful order issued by a superior noncommissioned officer
* Being disrespectful in language to a superior noncommissioned officer

6.  On 24 March 1971, he was arrested by military authorities for wrongful possession of marijuana.

7.  On 5 April 1971, he underwent a medical examination in preparation for involuntary separation from the Army.  His Standard Form 89 (Report of Medical History) shows he indicated he had never:  suffered a head injury, suffered periods of unconsciousness, had any illness or injury involving his head, or consulted or been treated by medical personnel within the past 5 years.

8.  On 7 April 1971, he underwent a command referred psychiatric evaluation at the U.S. Army, Vietnam Stockade in connection with administrative board proceedings under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), due to unfitness.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  It was determined that efforts to rehabilitate or develop him into a satisfactory member of the military would be unsuccessful and he was recommended for administrative separation.

9.  Special Orders Number 138 issued by Headquarters, U.S. Army Personnel Center, Oakland CA on 18 May 1971 show he was discharged under the provisions of Army Regulation 635-212 due to unfitness, effective 18 May 1971.  These orders also show his service was characterized as Under Conditions Other Than Honorable and he was to be issued a DD Form 258A (Undesirable Discharge Certificate).

10.  His DD Form 214 confirms he was discharged accordingly.  

11.  His record is void of any evidence and he has not provided evidence he ever sustained a concussion that may have contributed to his misconduct. 

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  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.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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's contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  His record is void of any evidence and he has not provided evidence he ever sustained a concussion that may have contributed to his misconduct.  Therefore, his contention that he was erroneously reported as AWOL is unfounded.

3.  His record reveals a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on two occasions, conviction by special court-martial on one occasion, and being arrested for possession of marijuana.

4.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge.

6.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general or 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)                                         AR20100020859





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ABCMR Record of Proceedings (cont)                                         AR20100020859



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