IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100024249 


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 discharge.

2.  The applicant states 135 days lost does not warrant the discharge he received.  He served honorably in war, but lost time because of his father's illness.  He thinks a deeper understanding of the Vietnam veteran requires sympathy.

3.  The applicant provides a copy of his DD Form 214 (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 on 31 July 1968.  He completed basic and advanced individual training as an artilleryman and was posted to Vietnam.

3.  He served in Vietnam with B Battery, 7th Battalion, 13th Artillery Battalion from 22 January 1969.  While there, he was advanced to pay grade E-3 on 23 January 1969.  He then received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 18 June 1969, for leaving his place of duty. 

4.  On 21 October 1969 he returned to the United States on emergency leave and was attached to Special Troops, Fort Bliss, Texas where he received another NJP on 4 December 1969. 

5.  On 30 April 1970 the applicant was convicted by a special court-martial of disrespect to a commissioned officer, disrespect to a noncommissioned officer, two specifications of failure to obey lawful orders, and absence from his appointed place of duty.  The sentence of confinement for 4 months, forfeiture of $55.00 pay per month for 4 months and reduction to pay grade E-1 was approved and ordered executed on 18 June 1970.  On 6 August 1970 the unexecuted portion of the sentence was suspended for 4 months.

6.  On 15 October 1969 he was relieved from his parent command in Vietnam and reassigned to the Air Defense School-Center, Fort Bliss, Texas.  

7.  The applicant received NJP on 23 October 1970 for 16 days absence without leave.

8.  Notwithstanding the recent misconduct, he was advanced to pay grade E-3 on 22 February 1971.

9.  The applicant received a fourth NJP on 9 March 1971 for absence from his appointed place of duty.

10.  No discharge processing documents are contained in the available records.  On 4 August 1971 the applicant was ordered discharged with an undesirable discharge due to unfitness by frequent incidents of a discreditable nature with civil or military authorities.  On 5 August 1971 the applicant was so separated.

11.  There is no indication that the applicant ever applied to the Army Discharge Review Board.



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 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure 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 15-185 (Army Board for Correction of Military Records), paragraph 2-9 (Burden of proof) provides 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 states 135 days lost does not warrant the discharge he received.  He served honorably in war, but lost time because of his father's illness.  He thinks a deeper understanding of the Vietnam veteran requires sympathy.

2.  The applicant was not discharged solely for being AWOL.  He was discharged for repeated misconduct.  

3.  He offered no explanation as to how his AWOL was related to his father's illness.  He also did not explain how his experience in Vietnam is related to his misconduct.

4.  The regulations governing the Board’s operation require 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.  



5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20100024249





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ABCMR Record of Proceedings (cont)                                         AR20100024249



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