IN THE CASE OF:
BOARD DATE: 22 February 2011
DOCKET NUMBER: AR20100021209
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.
2. The applicant states he did not have a military lawyer at the time he was in court even though he asked for one. He went to Vietnam willingly and served his country. He wants the veteran's benefits that he believes he is entitled to receive. He states he has always been there for his country and he will always be there.
3. The applicant provided 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 applicants 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 applicants 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 18 August 1971 and he held military occupational specialty 11B (Light Weapons Infantryman).
3. On 9 February 1972, he was convicted by a special court-martial of being absent without leave (AWOL) from on or about 7 January 1972 to 3 February 1972.
4. He served in Vietnam from on or about 18 February to 11 May 1972 until he was medically evacuated from Vietnam, due to a knee injury, and assigned to the Medical Holding Detachment, Naval Hospital, Great Lakes, IL.
5. On 13 July 1972, he departed the Medical Holding Detachment en-route to his new duty assignment at Fort Carson, CO.
6. On 24 July 1972, he was reported AWOL by his unit due to his failure to report to his duty station.
7. On 28 August 1972, the commander, 4th Replacement Detachment, Fort Carson, was notified the applicant had been apprehended by civil authorities on 20 July 1972. The Circuit Court in Milwaukee County WI had charged him and convicted him of burglary and battery of a police officer on 25 August 1972. He was sentenced to serve 4 years in confinement in the Wisconsin Reformatory, Green Bay, WI.
8. On 5 September 1973, he was informed by his commander that discharge action was being initiated against him under the provisions of Army Regulation 635-206 for misconduct.
9. On 13 September 1973, he acknowledged notification of the proposed discharge action. He consulted with legal counsel and he was advised of the basis for the contemplated separation action, 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.
10. On 6 March 1974, a board of officers convened to determine the applicant's desirability for retention. The Summary of Proceedings reveals that although the applicant was absent from the proceedings, he was represented by legal counsel, Captain Sxxxx.
11. The board found him undesirable for further retention and recommended that he be discharged from the service due misconduct with the issuance of an Undesirable Discharge Certificate.
12. On 22 April 1974, his chain of command recommended that he be separated under the provisions of Army Regulation 635-206, for misconduct.
13. On 10 May 1974, the separation authority accepted the findings and recommendations of the board of officers and approved his discharge under the provisions of Army Regulation 635-206 for misconduct and directed the issuance of an Undesirable Discharge Certificate, and reduction to the rank to private/E-1. On 20 May 1974, the applicant was discharged accordingly.
14. 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 with an under other than honorable conditions characterization of service. He completed a total of 9 months and 28 days of creditable active service with 666 days of lost time due to being in confinement and 28 days of lost time due to being AWOL.
15. On 25 October 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
16. Army Regulation 635-206 (Personnel Separations Discharge - Misconduct), in effect at the time, set forth the basic authority for the separation of enlisted personnel and established policy and prescribed procedures for separating members for misconduct. Specific categories included a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. An undesirable discharge was normally considered appropriate for a Soldier discharged under this regulation.
17. Army Regulation 635-200 (Enlisted Separations) currently sets forth the basic authority for the separation of enlisted personnel:
a. Army Regulation 635-200, 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.
b. 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 evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his special court-martial conviction for being AWOL just prior to his going to Vietnam, and his civil conviction for burglary and battery of a police officer. Accordingly, his immediate commander initiated separation action against him.
2. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized 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.
3. On 6 March 1974, a board of officers convened and determined the applicant was not desirable for further retention. The Summary of Proceedings indicates the applicant was not present due to being in civil confinement; however, he was represented by legal counsel.
4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.
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) AR20100021209
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ABCMR Record of Proceedings (cont) AR20100021209
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