IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110010917 


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, in effect, an upgrade of his undesirable discharge (UD) to an honorable discharge.

2.  He states:

* he performed combat duty in Vietnam with the 25th Infantry Division
* after being wounded, he returned to the United States and went absent without leave (AWOL)
* he was released from active duty with a UD
* other Veterans with similar experiences as a result of physical and psychological wounds received during their service have upgraded discharges
* he believes he served honorably in light of his experiences and it should be reflected in his character of service

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 record shows that after having previously served 2 years,
9 months, and 16 days in the Regular Army (RA) he reenlisted on 17 December 1963.

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 31 (Foreign Service) Vietnam service from 28 December 1966 to
21 April 1967
* Item 40 (Wounds) a head wound on 16 March 1967

4.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 18 June 1963, for drinking in the billets and creating a disturbance
* 1 May 1964, for absenting himself without authority, being absent from bed check, and remaining in the village from 29 April to 30 April 1964
* 10 August 1964, for being in possession of an illegal pass 
* 22 December 1964, for using disrespectful language towards a noncommissioned officer and for having an unauthorized pass
* 7 August 1967, for being AWOL from the William Beaumont General Hospital, El Paso, TX from 4 July to 3 August 1967

5.  His record contains General Orders Number 36, issued by the 24th Evacuation Hospital (Semi-Mobile), dated 18 March 1967, which show he received the Purple Heart for being wounded in action on 16 March 1967.

6.  His record is void of any evidence that he was treated for psychological trauma after he was injured in Vietnam.

7.  His record contains a DA Form 4187 (Personnel Actions), dated 
24 September 1975, that shows on 9 September 1975, his duty status was changed from dropped from rolls to present for duty after being apprehended by civil authorities and returned to military control.   

8.  His record contains a DA Form 2496-1 (Disposition Form), subject:  Time Lost, which shows his period of service from 22 January 1968 to 9 September 1975 was determined to be lost time.   
9.  His record is void of the separation packet containing the specific facts and circumstances surrounding his discharge processing from the Army; however, it does contain a properly constituted DD Form 214 that confirms he was discharged from the RA under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15 (Misconduct – Desertion and Absence Without Leave).  This DD Form 214 also shows his service was characterized as under other than honorable conditions, he was assigned a separation program designator (SPD) Code of "JKD," and issued a DD Form 258A (Undesirable Discharge Certificate).  He had 2,624 days of loss time.  Absent evidence to the contrary, this document establishes a presumption of Government regularity in the applicant’s separation processing.

10.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of AWOL or desertion.  Elimination action under the provisions of this chapter would not be taken to in lieu of disciplinary solely to spare an individual the penalties which may be imposed under the UCMJ.

12.  Army Regulation 635-200, 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.

13.  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.  

14.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated that the SPD code of JKD was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 15, for AWOL.


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.

2.  His record shows he was wounded in Vietnam and received a Purple Heart.    However, there is no evidence that indicates his injuries contributed to his acts of misbehavior or misconduct nor is there any evidence that he was treated for psychological ailments.  

3.  The evidence of record shows he had five nonjudicial punishments, four issued prior to his tour in Vietnam, and a total of 2,624 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  There is no evidence that shows he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

5.  In view of the above, there is no basis for granting him 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)                                         AR20110010917



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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