BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029336 


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 general discharge to an honorable discharge.

2.  The applicant states he served in Vietnam in combat positions and extended beyond 12 months in order to get discharged upon his return to the United States.  He was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.  He was evaluated by an Army psychologist as able to be discharged for the good of the service as he had some emotional issues.  His combat service deserves an honorable discharge in light of no serious offenses and a good combat and overseas record.

3.  The applicant provides 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's records show he was inducted into the Army of the United States on 27 February 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  He was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.

3.  He served in Vietnam from 4 September 1969 to 3 December 1970 while assigned to 3rd Battalion, 187th Infantry, 101st Airborne Division.

4.  While serving in Vietnam, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* on 9 March 1970, for being absent from his appointed place of duty and disobeying a lawful order
* on 16 March 1970, for being absent from his assigned unit from 14 to 15 March 1970
* on 20 March 1970, for dereliction of duty

5.  On 18 September 1970, he was convicted by a special court-martial of two specifications of violating a lawful order.

6.  On 3 November 1970, court-martial charges were preferred against him for the following specifications:

* possessing three tablets of lysergic acid diethylamide (LSD) on 22 September 1970
* transferring three tablets of LSD to another Soldier on 22 September 1970
* possessing 15 tablets of LSD on 24 September 1970
* selling 40 tablets of LSD on 24 September 1970
* possessing marijuana on 24 September 1970
* possessing another Soldier's identification card
* possessing another Soldier's currency control card

7.  On 3 December 1970, he escaped from pre-trial confinement at Da Nang, Vietnam.  On 9 March 1971, he was apprehended by military authorities at Fort Meade, MD, and court-martial charges were preferred against him for being absent without leave.

8.  On 19 March 1971, he was referred for a psychiatric evaluation.  The examining physician diagnosed him as having an emotionally unstable personality.  He was cleared for administrative or judicial disposition as deemed fit by the command and recommended for separation from the Army for the good of the service.

9.  On 29 March 1971, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.

10.  On 29 March 1971, he consulted with legal counsel and he was advised of the discharge action being initiated against him, the effect on future enlistment in the Army; the possible effects of a general discharge under honorable conditions; and of the procedures and rights that were available to him.  He further acknowledged he understood if he were issued an undesirable discharge under conditions other than honorable, he could expect to encounter substantial prejudice in civilian life and he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers and he elected not to submit a statement in his own behalf.

11.  On 6 April 1971, the separation authority approved his discharge under the provisions of Army Regulation 635-212 for the good of the service by reason of unsuitability.  He directed the issuance of a General Discharge Certificate.  On 14 April 1971, he was discharged accordingly.

12.  On 22 July 1971, the 101st Airborne Division, Vietnam, commander sent Fort Meade officials a message requesting they take necessary steps to return the applicant to military control so appropriate disciplinary action could be accomplished.  The commander emphasized the applicant escaped from pre-trial confinement, unlawfully returned to the United States, and fraudulently procured an administrative discharge from the Army.  The commander further requested an investigation be conducted into the circumstances surrounding the applicant's release from active duty.

13.  Fort Meade officials responded that the applicant's personnel file was not received until after he had been discharged from the Army and at the time they processed him for discharge they were unaware he had escaped from pre-trial confinement in Vietnam while awaiting trial by a general court-martial.  An investigation was conducted and on 19 October 1971 the Fort Meade Chief of Military Law determined there was no evidence the applicant procured his discharge through fraud.  Although the discharge was based on a mistake of fact, it was issued by competent authority and was valid and irrevocable.

14.  Army Regulation 635-212, in effect at the time, contained the policy and outlined the procedures for separating individuals for unsuitability.  It provided that individuals would be discharged by reason of unsuitability when their records were characterized by one or more of the following:  (a) inaptitude due to a lack of general adaptability, (b) character and behavior disorders determined by medical authority, (c) apathy and defective attitudes, and/or (d) alcoholism.  This regulation prescribed that an individual discharged for unsuitability would be furnished an honorable or a general discharge.

15.  Army Regulation 635-200 (Personnel Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows while in Vietnam the applicant received NJP on three occasions, was convicted by a special court-martial, and was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge.  He escaped from pre-trial confinement while awaiting trial by a general court-martial.

2.  Due to the absence of his personnel file, when he was returned to military control he was subsequently discharged by reason of unsuitability and issued a general discharge, under honorable conditions.

3.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  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 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)                                         AR20100029336



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ABCMR Record of Proceedings (cont)                                         AR20100029336



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