IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100025779 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his:

* rank/pay grade as specialist four (SP4)/E-4
* effective date of discharge as 21 October 1972
* Vietnam service

2.  The applicant states his DD Form 214 shows an incorrect rank/grade, incorrect discharge date, no Vietnam service.  In August 1972, he was transferred from Vietnam to the Frankfurt General Hospital in Germany to detox from heroin addiction.  After detox, he was sent to Fort Dix, NJ where he was discharged.  In Vietnam he served with the 101st Airborne, 2nd Battalion, 
3rd Infantry.

3.  The applicant provides 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 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 22 October 1969 for a period of 3 years.  He was awarded military occupational specialty 13A (Field Artillery Basic).  He was reassigned to the U.S. Army Europe (USAREUR) where he was assigned to A Battery, 2nd Battalion, 75th Field Artillery in Germany, effective
13 April 1970.  He was advanced to SP4/E-4 on 12 March 1971.

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions:

	a.  On 1 July 1971, for failing to go at the time prescribed to his appointed place of duty on 21 and 22 June 1971.  His punishment included forfeiture of $40.00 for one month and a reduction to private first class (PFC)/E-3.

	b.  On or about 10 September 1971, for destruction of property valued at 300 Deutsche Marks, the property of [a civilian]. His punishment included forfeiture of $32.00 pay per month for one month and reduction to private (PV2)/E-2.

4.  On 1 October 1971, his commander notified him of his intent to eliminate him from service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unsuitability.  The commander requested waiver of a rehabilitative transfer citing the following:

	a.  Applicant stated he could not be changed to any other unit and that he does not have a conflict with the battery personnel but he does resent the Army.  Further, he had a drug problem.

	b.  Psychiatric evaluation determined further rehabilitation efforts would probably fail.  

5.  On 1 October 1971, the applicant acknowledged receipt of the separation action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived 


consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf.

6.  On 1 October 1971, the commander submitted the applicant's separation packet through the chain of command.  On 5 October 1971, the battalion commander recommended approval and waiver of a rehabilitative reassignment.  He stated the applicant's gradual decline in conduct, efficiency, and appearance was characteristic of the drug user.  The applicant also has no initiative or desire to help himself and rejects advice or counseling from his peers and superiors.

7.  On 18 October 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed the issuance of a General Discharge Certificate.

8.  On 18 October 1971, the applicant acknowledged under his signature that he received a copy of the proceedings under the provisions of Army Regulation
635-212 concerning his release from service in the U.S. Army.

9.  Special Orders Number 294, issued by Headquarters, U.S. Army Personnel Center, Fort Dix, dated 21 October 1971, discharged the applicant effective 
21 October 1971 with issuance of a General Discharge Certificate.  The DD Form 214 he was issued at the time shows in:

* Item 5a (Grade, Rate or Rank) - PVT [private]
* Item 5b (Pay Grade) - E-2
* Item 6 (Date of Rank) - 28 September 1971
* Item 11d (Effective Date [of Discharge] - 21 October 1971
* Item 13a (Character of Service) - Under Honorable Conditions
* Item 13b (Type of Certificate Issued) - DD Form 257A [General Discharge Certificate]
* Item 22c (Last Duty Assignment and Major Command) - Battery A, 2nd Battalion, 75th Artillery, USAREUR

10.  The record does not contain orders or documentation and the applicant did not provide any evidence that shows he was assigned to the Republic of Vietnam or assigned to the 101st Airborne, 2nd Battalion, 3rd Infantry.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished each individual separated from the Army and established standardized 


procedures for the preparation and distribution of these documents.  It also established standardized policy for the preparation of the DD Form 214.  It stated for:

* Item 5a and b, enter the rank and pay grade in which serving at the time of separation
* Item 11d, enter the date separation is accomplished
* Item 22c, enter total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed, e.g., "Foreign and/or Sea Service (USAREUR)"

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his DD Form 214 to show his:

* rank/grade from PV2/E-2 to SP4/E-4
* date of separation as 21 October 1972 
* service in Vietnam

2.  The record shows he was reduced to PV2/E-2 as a result of NJP under
Article 15, UCMJ.  He was subsequently discharged under the provisions of Army Regulation 635-212, for unsuitability, effective 21 October 1971.  Further, there is no evidence the applicant was ever assigned to the RVN during his period of service.  Based on the available evidence of record, there are no apparent errors on his DD Form 214.

3.  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)                                         AR20100025779



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ABCMR Record of Proceedings (cont)                                         AR20100025779



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