BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100023432 


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.  The applicant states he was told he would receive a general discharge.  Therefore, he was lied to concerning the type of discharge he would receive.
 
3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army (RA) on 25 October 1968.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was initially assigned to Vietnam from 5 April to      20 June 1969 until he departed in a patient status, possibly due to a wound he received on 12 April 1969.  

3.  On 17 November 1969, he was honorably discharged for immediate reenlistment and he reenlisted in the RA on 18 November 1969.  He returned to Vietnam and served from 22 February to 2 October 1970.  He was also wounded during this tour, on 27 March 1970.

4.  His DA Form 20 (Enlisted Qualification Record) shows in:

     a.   Item 40 (Wounds) that he received a shrapnel wound to his back on
12 April 1969 and on 27 March 1970 he received a wound listed as "FW (R) Arm" [fragment wound to the right arm]. 

     b.  Item 41 (Awards and Decorations) - the National Defense Service Medal, Vietnam Service Medal, the Vietnam Campaign Medal, and the Army Commendation Medal. 

5.  His DD Form 214 shows in item 24 (Decorations, Medals, Badges, and Commendations, Citations and Campaign Ribbons Awarded or Authorized) the Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal. 

6.  The applicant was reduced in grade on 13 January 1970 due to nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, and again on 16 February 1970.  He was also reduced on 25 July 1970 and on 31 July 1970 due to reasons that are not available.

7.  The applicant's discharge processing documentation is not of record; however, his DD Form 214 shows that he was discharged on 2 October 1970 under the provisions of Army Regulation 635-212 (Discharge Unfitness and Unsuitability) for frequent incidents of a discreditable nature with civil or military authorities.  He completed 10 months and 15 days of active service during this second period of enlistment and 1 year, 11 months, and 8 days of total active service. 

8.  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 and other kinds of behavior.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel: 

 	a.  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.  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.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 shows he was discharged due to unfitness with an undesirable discharge.  Therefore, it must be presumed that the applicant’s discharge accurately reflects his overall record of service.

2.  He has not provided any evidence to corroborate his contention that he was lied to or told he would receive a general discharge.  Additionally, there is no available evidence showing he was unjustly treated.

3.  The Army regulation governing the Board's operation requires that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  There is no evidence of record and the applicant did not provide any evidence to the contrary.  Therefore, there is no basis for a discharge upgrade.

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)                                         AR20100015867



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100023432



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1