IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20110001303 


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 earlier request for an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states in light of the extreme conditions experienced by his family and given his prior honorable service, a hardship discharge would have been more appropriate.  Additionally, the record fails to establish that he was adequately notified or that he appropriately waived his rights.  Specifically: 

* He was too proud to discuss personal problems with his superiors
* It is highly probable he could have received a hardship discharge
* He was discharged only a few days after completing his prison sentence
* He had previously served honorably 2 years
* He is only guilty of poor judgment
* An honorable discharge would present an accurate portrayal of his capabilities given the abnormal hardship conditions
* His misconduct should be viewed in light of the hardship that caused his emotional state of mind
* He was given inadequate notice of his discharge; he was not notified of his rights; he never waived his rights; he was denied due process

3.  The applicant provides a copy of his service record consisting of:

* DD Form 4 (Enlistment Record - Armed Forces of the United States) and allied documents
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 29 November 1962 and 5 June 1967
* DD Form 215 (Correction to DD Form 214)
* State of Vermont Information and Warrant
* A Social Services Report, issued by the State of Vermont, Department of Social and Rehabilitation Services, dated 3 May 1966
* DA Forms 2627-1 [Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice] 
* Special Orders Number 112 (discharge orders)
* Special Orders Number 111 (attachment orders)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 89 (Report of Medical History)
* DD Form 481-3 (Clinical Record Cover Sheet)
* Walter Reed Army Medical Center (WRAMC) Form 184 (Physical Profile Notification)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Prior legal brief to the Army Discharge Review Board (ADRB)
* Separation packet
* General Court-Martial Orders Number 5, dated 15 January 1965
* DA Form 20 (Enlisted Qualification Record)
* DA Form 24 (Service Record)
* DA Form 26 (Record of Court-Martial Conviction)
* Personal Affidavit, dated 25 May 1978

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090015601 on 18 February 2010.

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

3.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 19 September 1960 and held military occupational specialty 642.10 (Heavy Vehicle Driver).   He was initially assigned to Fort McNair, Washington, DC. 

4.  He was reported in an absent without leave (AWOL) status from 13 September to 15 September 1961.
5.  On 25 October 1961, he was convicted by a summary court-martial of one specification of being AWOL from 13 to 15 September 1961.  The court sentenced him to a forfeiture of $20.00 pay and 14 days of restriction.  The convening authority approved his sentence on 27 October 1961.

6.  On 6 June 1962, he was convicted by a summary court-martial of one specification of incapacitation for the performance of his duties as a result of the previous indulgence in intoxicating liquor.  The court sentenced him to a reduction to private/E-2.  The convening authority approved his sentence on the same date.

7.  He served in Korea with Company C, 17th Transportation Battalion from 17 August 1962 to 13 September 1963.  While in Korea, he was honorably discharged on 28 November 1962 for the purpose of immediate reenlistment.  His DD Form 214 shows he completed 2 years, 3 months, and 11 days of creditable active service and he had 3 days of lost time.  

8.  On 29 November 1962, he reenlisted in the RA for 6 years and he was reassigned to Company B, 1st Battalion, 17th Infantry, on 26 May 1963.  

9.  On 11 June 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty from 30 May to 4 June 1963.  

10.  Upon completion of his Korea tour, he was reassigned to Fort Myer, VA, on or about 26 September 1963.  

11.  On 4 November 1963, he was reported in an AWOL status.  On 25 June 1964, he was apprehended by civil authorities at Island Pond, VT and returned to military control at Fort Devens, MA, on 26 June 1964.  He was confined from 
25 June to 20 July 1964 pending disposition of the charges.

12.  On 22 October 1964, he was tried by a general court-martial for being AWOL from 4 November 1963 to 25 June 1964.  The court found him not guilty of the specification and the charge.  The court ordered him to return to duty.

13.  He departed his unit in an AWOL status from 26 to 27 October 1964 and he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL on 28 October 1964.  His punishment consisted of 14 days of restriction.

14.  On 22 March 1965, he was reassigned to Company A, 96th Quartermaster Battalion, Fort Lee, VA, and on 2 June 1965, he was reassigned to the 120th Transportation Company, Fort Meade, MD.
15.  On 13 June 1965, he departed his unit in an AWOL status and he was dropped from Army rolls as a deserter on the same date.  He was apprehended by civil authorities in St. Johnsnbury, VT, on 24 March 1966, and returned to military control at Fort Devens, MA on 26 March 1966.  He was immediately placed in confinement from 25 March to 8 June 1966.

16.  On 10 June 1966, he again departed his unit in an AWOL status.  He was apprehended by civil authorities in Charlotte, VT, on 3 January 1967.  He was detained at the Chittenden County Jail, Burlington, VT.  On 6 January 1967, he was returned to Fort Devens, MA, and placed in confinement until 7 February 1967.  He returned to duty on 8 February 1967.

17.  On 11 February 1967, he again departed his unit in an AWOL status but he returned to military control on 12 February 1967.

18.  On 18 February 1967, he departed his unit in an AWOL status and he was arrested by civil authorities in St. Johnsbury, VT on 16 March 1967.  He appeared before the Chittenden County District Court on 20 March 1967 and he pled not guilty to the civilian charge of taking, using, and operating a car without the consent of the owner.  He remained confined.

19.  On 28 April 1967, he appeared before the Chittenden County District Court and he pled guilty to the civilian charge.  The court sentenced him to 35 days of imprisonment in the county jail.  

20.  On 11 May 1967, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) due to a civil conviction. 

21.  On 22 May 1967, the applicant acknowledged receipt of the separation action, and after having been advised of his rights, including the basis for the contemplated separation action due 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 and appearance before a board of officers and elected not to submit a statement in his own behalf. 

22.  He further acknowledged that he understood he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He further acknowledged he understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.  

23.  On 26 May 1967, by memorandum, the applicant's immediate commander initiated separation action against the applicant citing his civilian conviction.  The immediate commander recommended the requirement of paragraph 5 of Army Regulation 635-206 be waived as the evidence clearly established the applicant had been convicted by a civil court and he was confined and in the custody of civilian authorities.  The immediate commander recommended an Undesirable Discharge Certificate be issued to the applicant.

24.  On 1 June 1967, the separation authority approved the recommendation to discharge the applicant from the Army under the provisions of section VI of Army Regulation 635-206 and directed the issuance of an Undesirable Discharge Certificate.  On 5 June 1967, the applicant was accordingly discharged.

25.  The DD Form 214 he was issued shows he was discharged under the provisions of section VI of Army Regulation 635-206, due to conviction by a civil court and he was issued an Undesirable Discharge Certificate.  This form also shows he completed a total of 4 years and 1 day of creditable active service and he had 991 days of time lost.

26.  On 15 October 1978, he withdrew his application just 2 days prior to his personal appearance before the Army Discharge Review Board.

27.  He provides:

	a.  A Social Services Report from the State of Vermont, Department of Social and Rehabilitation Services, dated 3 May 1966, indicates a social worker noted the applicant's wife complained that the applicant had been arrested and was awaiting trial for being AWOL from the Army.  He was unable to provide for the children and she was unable to care for three children under the age of 2 [one set of twins] by herself.  

	b.  Various medical documents, including a physical profile and records of clinical care, dated throughout 1961, shows while the applicant was in an AWOL status, he fractured the left and right 9th ribs when he was involved in an automobile accident.  He was very uncooperative during hospitalization and he was ultimately issued a temporary physical profile and returned to duty.

28.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A 
UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge or general discharge, under honorable conditions if it were warranted based on the member's record of service.  

29.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

30.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  The evidence of record shows the applicant's service was marred by an extensive history of misconduct ranging from NJP to AWOL and convictions by two courts-martial prior to his civilian conviction.  While the applicant's serious offense (civilian conviction) occurred within the civilian community, his conviction clearly brought discredit upon the applicant and the Army  

3.  The evidence of record further shows his chain of command initiated separation action against him and that he was accordingly notified.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  With respect to his arguments:

	a.  His initial period of enlistment was captured on a separate DD Form 214 and his character of service is appropriately listed on that form.  When his chain of command initiated separation action against him, the immediate commander considered his prior service in the recommendation for elimination.

	b.  While it is true he could have applied for a hardship discharge, the argument that it was highly probable he could have received a hardship discharge is speculative as there is no evidence he did so or if he had done so, it would have been approved.

	c.  He argues that he was discharged only a few days after completing his prison sentence.  The length of time between his release from civilian prison and discharge from the Army was not the reason for his discharge.  He was discharged by reason of his civilian conviction.

	d.  He argues that he is only guilty of poor judgment.  His records show he had an extensive history of being AWOL, two instances of NJP, two instances of courts-martial, and a civilian conviction.

	e.  An honorable discharge is appropriate when the quality of the Soldiers 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.  His service did not rise to this standard.  His discharge is appropriate based on the quality of his service.  

	f.  He argues that his misconduct should be viewed in light of the hardship that caused his emotional state of mind, yet he presents no evidence of any of the several other legitimate ways that were available to him to alleviate his hardship. 

	g.  He argues that he was given inadequate notice of discharge; he was not notified of his rights; he never waived his rights; and he was denied due process; yet, the available evidence clearly shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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 AR20090015601, dated 18 February 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)                                         AR20110001303



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ABCMR Record of Proceedings (cont)                                         AR20110001303



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