BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110017547 


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 his general discharge be upgraded to an honorable discharge.

2.  He states he was court-martialed on unjust charges.  He did not have any problems until Captain W____ gave him a request order and asked him to pick up some items.  The applicant contends he did not read the request order he was given.  Specialist H____, the other person with him, gave a statement.  However, he was sent home early and the court would not allow his statement in his absence.

3.  The applicant adds that he was advised by a doctor at a Department of Veterans Affairs Medical Center in Memphis, TN, to seek an honorable discharge.  Therefore, he is seeking assistance in upgrading his discharge to honorable.

4.  He provides:

* a DD Form 4 (Enlistment Contract – Armed Forces of the United States)
* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a DA Form 2-1 (Personnel Qualification Record – Part II)
* various awards and commendations
* a DA Form 20B (Record of Court-Martial Conviction)
* several imprisonment and clemency documents


* various orders
* a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 6 September 1985

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.  He enlisted in the Regular Army on 8 July 1968.  After completion of training, he served in military occupational specialty 63C (General Vehicle Repairman).

3.  He was honorably discharged on 14 July 1970 for the purpose of immediate reenlistment on 15 July 1970.  He reenlisted for a period of 6 years.

4.  The applicant's military personnel record shows he served two tours of duty in the Republic of Vietnam during the periods:

* 21 June 1969 to 1 December 1970
* 6 June to 1 December 1971

5.  Specialist five/E-5 was the highest rank he attained while serving on active duty.  His record also shows he was awarded the Bronze Star Medal (BSM) on 11 November 1970 for meritorious service against a hostile force.  He also received the Army Commendation Medal (ARCOM) for meritorious service during his first tour of duty in Vietnam, plus various other service awards.  His record contains two letters of appreciation and one letter of commendation.

6.  On 5 November 1971, he was tried by a general court-martial on charges of unlawfully carrying a concealed weapon, wrongfully appropriating a government vehicle, and stealing government property.  His sentence included:

* forfeiture of all pay and allowances
* military confinement at hard labor for 2 years
* reduction to the grade of private/e-1
* a bad conduct discharge

7.  He provides a PMG (K) Form 95-1 (Current Data for Restoration, Clemency and Parole Review), dated 10 November 1972.  This form shows the Classification Board unanimously voted to grant the applicant clemency and fully restore him to active duty.

8.  A letter from Headquarters, Department of the Army, dated 8 January 1973, shows the Secretary of the Army directed the applicant's restoration to duty to serve the remaining portion of his enlistment.

9.  On 31 August 1973, the applicant's immediate commander issued him a Certificate of Unsuitability for Enlistment/Reenlistment.  The commander noted the applicant was a substandard Soldier who should be barred from reenlistment in the service.  He was apprehended by military police on 5 July 1973 for possession of suspected marijuana (42 plastic bags) and illegal introduction of an alcoholic beverage onto a Federal reservation.  Court-martial charges were preferred but later dropped by the Staff Judge Advocate due to an illegal search.  The commander also noted the applicant:

* missed numerous formations without valid excuses
* failed to return to duty after going on appointments
* departed the unit in an absent without leave (AWOL) status

10.  On 23 May 1975, he underwent a mental status evaluation which showed he had the mental capacity to understand and participate in board proceedings and he met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

11.  On 9 June 1975, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsuitability.

12.  The applicant acknowledged receipt of the notification of his pending separation action and was advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.

13.  He also indicated he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that in the event of the issuance of an undesirable 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 may encounter substantial prejudice in civilian life.

14.  On 12 June 1975, his commander initiated elimination action against him under the provisions of paragraph 13-5b of Army Regulation 635-200 by reason of unsuitability.  He noted the discharge was recommended because of the applicant's numerous violations under the Uniform Code of Military Justice (UCMJ), his inaptitude to adjust to military life, and constant display of apathy against the U.S. Army.

15.  The approval authority directed the applicant be discharged under the provisions of chapter 13, Army Regulation 635-200, by reason of unsuitability and be furnished a DD Form 257A (General Discharge Certificate).

16.  Accordingly, on 2 July 1975, the applicant was discharged and issued a General Discharge Certificate.  His DD Form 214 shows he completed 5 years, 8 months, and 3 days of total active service with 480 days of lost time due to military confinement and AWOL.

17.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 5 June 1986 after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged and denied his request.

18.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13, then in effect, prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge because he was unjustly tried and imprisoned for offenses which were not his fault.

2.  The evidence shows he was granted clemency and full restoration to active duty.  After his return to duty, he failed to adhere to the rules and standards of the Army and his unit.  He was cited for several violations under the UCMJ which included being AWOL, missing formations, and failing to return to duty.

3.  As a result, his commander initiated separation action under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability.  It appears that his prior conviction by a general court-martial had nothing to do with the general discharge he later received.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  A review of the applicant's record of service shows he was awarded the BSM and ARCOM for meritorious service during his first tour of duty in Vietnam.  However, his actions shortly after his restoration to active duty did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  In view of the above, there is no basis to grant him a fully 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 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)                                         AR20110017547



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ABCMR Record of Proceedings (cont)                                         AR20110017547



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