IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110002230 


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 that his undesirable discharge be upgraded.

2.  The applicant states that at the time he had recently returned from Vietnam where he was awarded the Bronze Star Medal (BSM) and his discharge occurred while he was in civilian confinement.  He continues by stating he had no military counsel and did not receive travel pay to his home of record.  He also states that during this period civilians were hostile toward military personnel.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his BSM orders, and four letters of support.

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 in Houston, Texas, on 18 July 1967 for a period of 3 years and training as a field wireman.  He completed all of his training at Fort Polk, Louisiana, and was transferred to Vietnam on 14 December 1967 for assignment to Headquarters and Headquarters Company, 2d Brigade, 25th Infantry Division.  He was advanced to pay grade E-4 on 1 July 1968.  He was awarded the BSM for meritorious service on 26 November 1968.

3.  He completed his tour of duty in Vietnam on 13 December 1968 and was transferred to Fort Riley, Kansas, on 4 February 1969 for assignment to an artillery battery.

4.  On 31 May 1969, nonjudicial punishment (NJP) was imposed against the applicant for being in an improper uniform in Junction City, Kansas.

5.  On 25 June 1969, NJP was imposed against him for speeding on post.

6.  On 27 June 1969, he was arrested by the Riley County Sheriff's Office in Manhattan, Kansas, for rape.

7.  On 8 July 1969, the applicant was arraigned in the District Court of Riley County, Kansas, and was represented by a court-appointed attorney.  The applicant waived a formal arraignment and pled guilty to the charge of forcible rape.  His plea was accepted and he was sentenced to the Kansas State Penitentiary in Lansing, Kansas, to serve confinement at hard labor for not less than 5 years or more than 21 years.  He was also ordered to be transferred to the Kansas State Reception and Diagnostic Center in Topeka, Kansas, for evaluation.

8.  On 5 September 1969, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) due to his conviction by civil authorities.  The applicant was notified that he had 30 days in which to make his elections and the applicant indicated he would not sign anything until he received military counsel.

9.  On 7 October 1969, the commander again notified the applicant that he had 30 days in which to make an election.  He also informed the applicant that he would be represented by counsel.

10.  Although undated, the applicant requested consideration of his case by a board of officers, to be represented by counsel in his absence, and indicated he did not intend to appeal his conviction.  He also submitted a statement in his own behalf wherein he asserted that having served in Vietnam he believed his military service caused or aggravated his psychiatric condition which caused the crime he committed and for which he was remorseful.  He went on to state that since his return from Vietnam he found it difficult to serve and he had requested return to Vietnam.  He further stated he did not believe he should receive a bad discharge and requested to be given an opportunity to redeem himself.

11.  On 24 October 1969, the commander initiated separation action.  On 29 December 1969, a board of officers convened with the applicant being represented by defense counsel.

12.  After reviewing all of the evidence presented, as well as the evidence of record, the board of officers unanimously recommended that the applicant be discharged because of misconduct (conviction by civil court) and issued an Undesirable Discharge Certificate.

13.  On 26 January 1970, the appropriate authority (a major general) approved the findings and recommendations of the board of officers and directed the issuance of an Undesirable Discharge Certificate.

14.  Accordingly, he was discharged under other than honorable conditions on 9 February 1970 under the provisions of Army Regulation 635-206 due to conviction by civil authorities.  He completed 1 year, 11 months, and 8 days of active service and had 229 days of lost time due to confinement by civil authorities.

15.  There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 33 provided that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

3.  The applicant's overall record of service has been considered.  However, given the seriousness of his offense, his record of service alone is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of 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 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)                                         AR20110002230



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ABCMR Record of Proceedings (cont)                                         AR20110002230



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