IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110017174 


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 to a fully honorable discharge.

2.  The applicant states that it has been 41 years since his discharge and he did not do anything so drastic as to warrant an undesirable discharge.  He goes on to state that he did not run to Canada to dodge the draft and he believes it is time to change his discharge to honorable because he wants his children and grandchildren to be proud of him for going to Vietnam.

3.  The applicant provides a one-page letter explaining his application.

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 19 October 1949 and enlisted in the Regular Army on 20 June 1969 for a period of 2 years.  He completed basic training at Fort Lewis, Washington and advanced individual training as a power generation equipment operator/mechanic at Fort Belvoir, Virginia before receiving orders transferring him to Vietnam.  His orders directed him to report to the Overseas Replacement Station at Fort Lewis on 6 December 1969.

3.  The applicant failed to report as ordered and he was reported as being in an absent without leave (AWOL) status, effective 6 December 1969.  He remained absent until 4 January 1970.  On 12 January 1970, he was convicted pursuant to his plea by a summary court-martial of being AWOL from 6 December 1969 to
4 January 1970.

4.  He was transferred to Vietnam on 17 January 1970 for assignment to Company B, 4th Aviation Battalion, 4th Infantry Division for duty as a powerman.

5.  On 8 April 1970, nonjudicial punishment was imposed against the applicant for failure to go to his place of duty (Guard Duty).

6.  On 15 June 1970, the applicant was convicted by a special court-martial of three specifications of disobeying lawful orders from superior noncommissioned officers, wrongfully appropriating a 3/4 ton truck, failure to go to his place of duty at the guardhouse, disobeying a lawful order issued by a commissioned officer to walk his post in an irregular manner, and wrongful possession of marijuana.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay for 
6 months, and reduction to the pay grade of E-1.

7.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Veterans Administration (VA) on 18 May 1971.  However, his records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged under other than honorable conditions on 20 July 1970 under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 1 year and 3 days of active service and he had 28 days of lost time due to being AWOL.

8.  There is no evidence to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant's rights.

2.  Accordingly, the type of discharge directed and the reasons appear to be appropriate considering all of the facts of the case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service and his repeated offenses before and while in Vietnam.  His service simply did not rise to the level of a general or 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 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)                                         AR20110017174



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ABCMR Record of Proceedings (cont)                                         AR20110017174



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