IN THE CASE OF:	

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110012115 


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.  Additionally, he requests the period of foreign service from 2 May 1972 to 24 June 1972 be listed as Vietnam instead of Korea.

2.  He states, in effect, that the court-martial was unjust and the charges were unfounded.  He explains that he injured his right knee while serving extra duty for an Article 15 and was placed on convalescent leave.  His first sergeant (1SG) took it personally because the 1SG thought he was trying to avoid duty and base restriction.  The applicant states the 1SG was a racist and used his authority to destroy the applicant's life and career.

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 enlisted in the Regular Army on 23 November 1971.

3.  Item 31 (Foreign Service) and item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) show he served in Vietnam from 2 May 1972 through 23 or 24 June 1972 and in Korea from 25 June 1972 through 30 May 1973.

4.  His disciplinary history includes his acceptance of nonjudicial punishment on four occasions under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* wrongfully using reproachful words
* failing to go to his appointed place of duty
* being absent without leave from 2 July 1973 to 9 July 1973
* failing to go at the time prescribed to his appointed place of duty
* being absent without leave from 24 September 1973 to 26 September 1973

5.  Special Court-Martial Order Number 5, dated 4 April 1974, issued by the 92nd Engineer Battalion, Fort Stewart, GA, shows he was found guilty of four specifications of failing to go at the time prescribed to his appointed place of duty and one specification of failing to obey a lawful order.

6.  On 1 May 1974, the company commander notified the applicant of his intent to recommend his discharge under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of unfitness (frequent incidents of a discreditable nature with civil or military authorities).

7.  On 1 May 1974 after being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to have his case considered by a board of officers, a personal appearance before a board of officers, and to counsel.  He also elected not to submit a statement on his behalf.

8.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further understood as a result of the issuance of a discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.

9.  On 7 May 1974, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13.  He directed that the applicant be furnished an Undesirable Discharge Certificate.

10.  His DD Form 214 issued at the time of his discharge shows he was discharged on 10 May 1974 under the provisions of Army Regulation 635-200, paragraph 13-5a(1), and issued an Undesirable Discharge Certificate.  He was credited with completing 2 years, 3 months, and 19 days of active service with 59 days listed as lost time.  His service in Indochina/Korea is listed as 2 May 1972-24 June 1972 and 25 June 1972-30 May 1973.

11.  On 6 July 1979, the Army Discharge Review Board (ADRB) approved his request for a discharge upgrade.  The ADRB determined his discharge proceedings were improper because they did not include a mental status evaluation as required by regulation.  There were no other discrepancies noted with his discharge proceedings.  The board considered the facts that the applicant had four Article 15's, a special court-martial, and 73 days of lost time during his current period of service and voted unanimously to characterize his service as general under honorable conditions.

12.  His previous DD Form 214 was voided and a new DD Form 214 was issued that lists the authority and reason for separation as Army Regulation 635-200, paragraph 14-33b(1), misconduct – frequent incidents of a discreditable nature with civil or military authorities.  Item 27 (Remarks) lists his Korea service as "2 May 1972-24 June 1972 and 25 June 1972-30 May 1973."

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an Undesirable Discharge Certificate was issued.  An honorable or general discharge may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

14.  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.

15.  Army Regulation 635-200, paragraph 5-3, provides that the Secretarial plenary separation authority is used when no other provision of this regulation applies.  Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes prescribes the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  This regulation provides that the SPD code of JFF applies to persons discharged under Secretarial Authority.

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces reentry eligibility (RE) codes.  
RE-1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DA Form 20 verifies he served in Vietnam from 2 May 1972 through 23 or 24 June 1972 and in Korea from 25 June 1972 through 30 May 1973.  Therefore, he is entitled to correction of his DD Form 214 to show the period from 2 May 1972 through 24 June 1972 as Vietnam service instead of Korea.

2.  He contends the court-martial was unjust and the charges were unfounded.  However, the evidence shows he was found guilty of four specifications of failing to go at the time prescribed to his appointed place of duty and one specification of failing to obey a lawful order.  There is no evidence of record and he did not provide any to show otherwise.  There is no evidence he was discriminated against or that his discharge was racially motivated.

3.  The ADRB upgraded his discharge to general under honorable conditions based on the fact that a mental status evaluation was not included in the separation proceedings.  In the ADRB's deliberation, the board determined that the discharge was improper, but the fact that he had four Article 15's, a special court-martial, and 73 days of lost time during his current period of service, voted unanimously to characterize his service as general under honorable conditions.

4.  Notwithstanding the ADRB's decision to upgrade his discharge to general under honorable conditions, the fact that the board determined his discharge was improper indicates that he did not receive due process and therefore, his rights were violated.  Therefore, in the interest of justice it would be appropriate to change the authority and reason for separation to Secretarial authority, Army Regulation 635-200, paragraph 5-3; SPD code to JFF; RE code to "1;" and upgrade his discharge to honorable.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

_________  ________________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

   a.  voiding his DD Form 214 dated 10 May 1974 and issuing a new 
DD Form 214 of the same date with the following entries;
   
* authority and reason, Secretarial authority, Army Regulation 635-200, paragraph 5-3
* SPD code, JFF
* RE code, "1"
* character of service, honorable

   b.  issuing the applicant an Honorable Discharge Certificate, dated 10 May 1974, in lieu of the General Discharge Certificate of the same date now held by the applicant;

   c.  deleting the entry "Korea Service:  2 May 1972-24 June 1972" from item 27 of his DD Form 214; and




	d.  adding the entries "Vietnam Service:  2 May 1972-24 June 1972" and "Korea Service:  25 June 1972-30 May 1973" to item 27 of his DD Form 214.



      ____________ _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)                                         AR20110012115



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ABCMR Record of Proceedings (cont)                                         AR20110012115



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