IN THE CASE OF:	  

		BOARD DATE:	   22 March 2011

		DOCKET NUMBER:  AR20100021606 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* he served honorably throughout the first part of his enlistment, to include his service in training and his service in Vietnam
* his troubles began after he returned from Vietnam and transferred to Fort Lee, VA, where he was unable to adjust to stateside duty
* he soon received a number of Article 15's and reductions in pay grades
* he "fell in with a bad bunch of guys" and was arrested for a civilian offense
* he was sentenced under the Youth Corrections Act, completed his sentence, was released, and had his conviction set aside 
* while incarcerated, he completed and received his general educational development (GED) high school equivalency diploma
* since his release, he has been a productive member of society and has had no further involvement with the law
* he remains active in pro-veteran community activities and organizations
* he has done well in life, but after 40 years he now wishes to have the stigma of his undesirable discharge erased

3.  The applicant provides:

* a self-authored statement
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* U.S. Department of Justice, U.S. Board of Parole, Parole Form H-19 (Certificate Setting Aside Conviction)
* State of West Virginia High School Equivalent Diploma

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 record shows he enlisted in the Regular Army for 3 years on 30 June 1967.  He completed training and was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).  The highest rank/pay grade he attained while serving on active duty was specialist four/E-4.

3.  His record shows he served in the Republic of Vietnam from 6 January 1968 to 9 January 1969.  On 4 March 1969, he reported to Fort Lee, VA, for assignment to the 957th Supply Company.

4.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

* on 28 April 1969, for being absent from his appointed place of duty on 25 April 1969
* on 7 July 1969, for being absent from his appointed place of duty on 3 July 1969
* on 21 August 1969, for being absent without leave (AWOL) from 8 August 1969 through 10 August 1969 and from 15 August 1969 through 17 August 1969

5.  On 11 July 1969, he was indicted by the U.S. District Court for the Eastern District of Virginia, Richmond, VA, for one count of theft of government property, and one count of transporting stolen property across state lines.

6.  On 29 August 1969, he was reported AWOL from his unit and remained AWOL until his apprehension by military authorities on 11 September 1969.

7.  On 12 September 1969, he was turned over to the Federal Bureau of Investigation pending arraignment and held in confinement at the regional jail in Hanover County, VA.

8.  On 30 October 1969, he was released from civilian confinement and returned to military authority.

9.  On 1 November 1969, he was reported AWOL from his unit and he was dropped from the organization's rolls as a deserter.  Based on an entry in item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of his DA Form 20 (Enlisted Qualification Record), it appears he was returned to military control on 2 November 1969.

10.  On 12 November 1969, he was confined at the Federal Youth Center, Morgantown, West Virginia.

11.  On 16 February 1970, he pled guilty to and he was convicted of the charge of theft of government property in violation of Title 18, U.S. Code, section 641.  He was sentenced to an indeterminate sentence, not to exceed 6 years, pursuant to Title 18, U.S. Code, section 5010(b), until released pursuant to Title 18, U.S. Code, section  5017(c), under the Federal Youth Corrections Act.

12.  On 26 June 1970, the applicant's commander notified him he was recommending his discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) based on his conviction and sentence by civil court and that he could receive an undesirable discharge.   The unit commander also advised the applicant of his right to a hearing before a board of officers, of the applicable waiver provisions, and of his right to submit written statements in his own behalf.  The applicant was also informed of his right to counsel and that military counsel would be made available to him, or that he could employ civilian counsel at no expense to the U.S. Government if he so desired.

13.  On 21 July 1970, he acknowledged receipt of the commander's separation notification and, after being advised of the basis for the contemplated separation action and of his rights, he initially waived his right to a hearing before a board of officers.  He later requested to have his case considered by a board of officers, he elected to submit statements in his own behalf, and he requested representation by appointed counsel.

14.  On 23 November 1970, he withdrew his previously-submitted individual waiver of rights and submitted a new statement, electing to waive consideration of his case and personal appearance before a board of officers.  He elected to submit statements in his behalf; however, such statements were not included in his separation packet and could not be reviewed.  He also waived representation by counsel.  He acknowledged he understood that if he received an under other than honorable conditions discharge, he could be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life as a result of his discharge.

15.  On 8 December 1970, the separation authority approved his separation under the provisions of Army Regulation 635-206 by reason of civil conviction and directed he receive an undesirable discharge with reduction to the lowest enlisted grade.  On 16 December 1970, he was discharged accordingly.  His   DD Form 214 issued upon his separation confirms he received an under other than honorable characterization of service and he completed a total of 2 years, 1 month, and 28 days of creditable active military service, including 1 year and 4 months of foreign service.  This form also shows he accrued 1 year, 3 months, and 20 days of lost time due to AWOL and confinement.

16.  The applicant provides:

* a self-authored statement in which he summarizes the circumstances leading to his civilian conviction and his post-conviction efforts to move on with his life
* U.S. Department of Justice, U.S. Board of Parole, Parole Form H-19, which sets aside his civilian conviction under the Youth Corrections Act, but does not set aside the underlying reason for his military discharge
* State of West Virginia High School Equivalent Diploma, otherwise known as a GED, which he attained while serving his sentence in confinement

17.  On 25 October 1977 after careful consideration of the applicant's case, the Army Discharge Review Board, determined his discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge.

18.  Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided that an undesirable discharge was normally considered appropriate for members separated under this provision of the regulation.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), the current regulation governing enlisted separations, sets forth the basic authority 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.

20.  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 request for upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  His contention that he has been a good, law-abiding citizen with a good work record since his discharge was also carefully considered.  However, while his post-service conduct is noteworthy, this factor is not sufficiently mitigating to warrant an upgrade of his discharge at this time.

3.  His record reveals an extensive disciplinary history that included his acceptance of NJP on three separate occasions and his accrual of 470 days of lost time due to AWOL and confinement.  Given this record of misconduct and the civil conviction that ultimately led to his discharge, his overall record of service did not support the issuance of an honorable discharge by the separation authority at the time of his discharge and does not support an upgrade at this time.

4.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of undistinguished service.

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 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)                                         AR20090015653



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ABCMR Record of Proceedings (cont)                                         AR20100021606



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