IN THE CASE OF:	  

		BOARD DATE:	  21 February 2012

		DOCKET NUMBER:  AR20110015736 


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, in effect, that he was drafted but willingly went and he served in Vietnam.  He goes on to state that he became addicted to heroin in Vietnam.  He also states that he was a changed man after returning from Vietnam, he had post traumatic stress disorder which affected him after his return, and he received no help for any of his problems.  He continues by stating that he went absent without leave (AWOL), fell in with the wrong crowd, and was unjustly convicted of murder and armed robbery, a crime he did not commit.  He also states that he served his time and took courses to better himself, but he needs an upgrade of his discharge to help him. 

3.  The applicant provides a two-page letter explaining his circumstances, a copy of his General Educational Development (GED) completion, and the results of an X-ray.

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 was born on 22 November 1949 and was residing in Suffolk, Virginia when he enlisted in the Regular Army in Richmond, Virginia on 26 January 1970 for a period of 3 years and training as a wireman.  He completed his basic training at Fort Campbell, Kentucky and his advanced individual training as a wireman at Fort Gordon, Georgia before being transferred to Vietnam on 23 July 1970.

3.  He departed Vietnam on 10 June 1971 and was transferred to Fort Eustis, Virginia on 23 July 1971.  

4.  On 20 September 1971, nonjudicial punishment (NJP) was imposed against him for four specifications of failure to go to his place of duty.

5.  On 11 November 1971, NJP was imposed against him for three specifications of failure to go to his place of duty.

6. On 28 January 1972, NJP was imposed against him for two specifications of  failure to go to his place of duty. 

7. His records show that he went AWOL on 20 February 1972 and remained absent in desertion until he surrendered to civil authorities in Nasemond County, Virginia on 15 October 1972 and was charged with robbery and murder.  He was convicted by civil authorities of both charges on 26 April 1973 and was subsequently sentenced to 20 years imprisonment of each charge and placed in the Virginia Department of Corrections under maximum security.

8. On 26 September 1973, 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 due to his conviction by civil authorities.

9.  On 8 June 1974, after consulting with defense counsel, the applicant elected to have his case considered by a board of officers, to be granted a personal appearance before the board, and to be represented by counsel.  He elected not to submit a statement in his own behalf.  His request for a personal appearance was denied on 13 September 1974.

10.  On 16 September 1974 a board of officers convened at Fort Eustis, Virginia with the applicant being represented by defense counsel.  After reviewing the available evidence, the board recommended that he be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  The appropriate authority approved the findings and recommendations of the board of officers on 23 September 1974.

11.  Accordingly, he was discharged under other than honorable conditions on 27 September 1974 under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  He had served 2 years and 21 days of active service and had 941 days of lost time due to AWOL and imprisonment.

12.  On 21 June 1978, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He was granted a personal appearance before the board at the Pentagon and although present, he declined to appear before the board.  After considering all of the available evidence, the ADRB determined that under the circumstances his discharge was both proper and equitable.  The ADRB denied his request on 6 January 1982.

13.  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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states 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 tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case and properly characterize his service during the period in question.

3.  The applicant's contentions and supporting documents have been noted.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge to general under honorable conditions.

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)                                         AR20110015736





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ABCMR Record of Proceedings (cont)                                         AR20110015736



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