IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100026164 


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 undesirable discharge to a general under honorable conditions discharge.

2.  He states that the Army did not consider his honorable service or the injuries he received during an ambush while serving in the Republic of Vietnam (RVN).  He further indicates that there were errors in his separation proceedings.

3.  He provides:

* a DD Form 214 (Armed Forces of the United State Report of Transfer for Discharge)
* a copy of his separation proceedings
* a Standard Form 46 (U.S. Government Motor Vehicle Operator's Identification Card)
* a photograph of him standing by wrecked vehicles

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.  He was inducted into the Army of the United States on 3 January 1966.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (wheel vehicle mechanic).

3.  On 19 October 1966, he was convicted by a special court-martial of being absent without leave (AWOL) for the period 18 July 1966 through 29 September 1966.

4.  He arrived in the RVN on 8 January 1967 and he was assigned to
Company C, 704th Maintenance Battalion, 4th Infantry Division where he performed duties as a wheel vehicle mechanic.  On 29 June 1967, he was authorized 30 days of emergency leave to the continental United States (CONUS).

5.  On 26 October 1967, he was convicted by a special court-martial of being AWOL from his unit in the RVN for the period 14 August 1967 through 
16 October 1967.

6.  On 2 November 1967, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The reasons cited by the commander were the applicant's two court-martial convictions for being AWOL for a total of 138 days.

7.  Having consulted with counsel and advised of his rights and the effect of a waiver of those rights and of the basis for his separation under the provisions of Army Regulation 635-212, the applicant waived consideration of his case by and personal appearance before a board of officers, and he elected not to submit a statement in his own behalf.

8.  The applicant understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further understood that, as the result of an undesirable discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 2 November 1967, the unit commander recommended the applicant's discharge from military service with an undesirable discharge under the provisions of Army Regulation 635-212 by reason of unfitness in the best interest of the Army.

10.  On 15 November 1967, the separation authority approved the applicant's discharge recommendations under the provisions of Army Regulation 635-212 with issuance of an Undesirable Discharge Certificate.

11.  On 22 November 1967, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-212 under separation program number (SPN) 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities).  He completed 1 year, 5 months, and 21 days of total active service with 138 days of time lost due.

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 635-200 (Active Duty Enlisted Administrative Separations), 
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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  There is no evidence in his military records nor did the applicant provide any evidence to support his allegations.
2.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record shows he was convicted by two special courts-martial for instances of AWOL, of which one was from the RVN and the other from before he was sent to the RVN.  Based on these actions, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which is required for issuance of a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100026164



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ABCMR Record of Proceedings (cont)                                         AR20100026164



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