IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100024277 


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 reconsideration of his previous application for an upgrade of his undesirable discharge to a general discharge.

2.  He states:

* he admits to being absent without leave (AWOL) for an extended period of time, but it is obvious he was not unfit to serve because he achieved the rank/grade of specialist four/E-4
* it is unfair for the military to punish him indefinitely, especially at a time when he needs Department of Veterans Affairs (VA) medical treatment and other benefits
* he is concerned the Army Board for Correction of Military Records (ABCMR) did not request the specific facts and circumstances surrounding his discharge from the military
* he was a well-adjusted Soldier prior to being told his military occupational specialty (MOS) was changed from 76Y (Supply Specialist) to 11B (Light Weapons Infantryman) and that he would be deployed to Vietnam
* he disagrees that his commanding officers had no knowledge of his marital problems or mental condition at the time he chose to be AWOL
* he returned from being AWOL and accepted his punishment which should count for something given the unpopularity of the Vietnam War
* his 2 1/2 years of service were more honorable than bad

3.  He provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090020740 on 12 August 2010.

2.  The applicant submitted a new argument which was not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  On 14 December 1967, he enlisted in the U.S. Army Reserve in the Delayed Entry Program.  On 27 December 1967, he enlisted in the Regular Army for a period of 3 years.  His enlistment contract shows he did not enlist for training in a specific MOS.  After completing initial entry training, he was awarded MOS 76Y.

4.  On 28 March 1968, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 25 to 27 March 1968.  His punishment was forfeiture of $18.00 per month for 1 month.

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

* item 31 (Foreign Service) he served in Korea from 3 April 1969 through 27 January 1970
* item 38 (Record of Assignments) –

* he was assigned for duty in Korea with Company B, 2d Battalion, 32d Infantry, 7th Infantry Division, on 21 April 1969 in duty MOS 11B
* on 11 July 1969, his duty MOS was changed to 76Y

* item 44 (Time Lost) he was –

* AWOL from 3 March to 12 May 1970 and from 16 July to 16 December 1970
* confined from 21 May to 14 June 1970 and from 22 January to 17 February 1971

6.  His official military personnel file (OMPF) contains a message from the 2d Battalion, 32d Infantry, to The Adjutant General, dated 26 April 1970.  The message shows:

* he departed his unit on 25 January 1970 on compassionate leave to an address in Lubbock, TX, for 25 days with a 10-day extension
* he failed to report back to his unit on 1 March 1970 and was dropped from rolls on 22 April 1970
* his unit corresponded with his wife on three occasions in March and April 1970 but did not receive a reply

7.  A DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows he was convicted by two special courts-martial of being AWOL from 3 March to 13 May 1970 and from 16 July to 15 December 1970.

8.  A review of his OMPF reveals no documentation showing he was to be deployed to Vietnam.

9.  The complete facts and circumstances of his discharge are not contained in his OMPF.  However, his record does contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 2 March 1971.  The DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

10.  His DD Form 214 further shows his service was characterized as under conditions other than honorable and that he completed 2 years, 5 months, and 3 days of total active service with 273 days of lost time.

11.  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 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).  Individuals processed for separation under this regulation were required to undergo a physical examination and mental status evaluation.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) states 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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for VA benefits.

3.  The record shows he received NJP for being AWOL and was twice convicted by courts-martial for the same offense.  This constituted a pattern of incidents of a discreditable nature with military authorities warranting separation for unfitness.  There is no evidence that shows he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process.  In the absence of such evidence, administrative regularity must be presumed.

4.  Due of his record of indiscipline which led to 273 days of lost time, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general 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 to amend the decision of the ABCMR set forth in Docket Number AR20090020740, dated 12 August 2010.



      ___________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)                                         AR20100024277



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ABCMR Record of Proceedings (cont)                                         AR20100024277



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