IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110017907 


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 undesirable discharge.

2.  The applicant states he was young and his tour in Vietnam really messed up his head.  After he was wounded he was sent back to the states and he had a hard time dealing with it all.

3.  The applicant provides no additional evidence.

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 inducted into the Army of the United States on 27 August 1968 at the age of 19 years, 5 months, and 27 days.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 31 January 1969 through 25 March 1969.

3.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows he sustained multiple fragment wounds to his upper calf and behind the knee joint on 22 March 1969.  He was subsequently assigned to the Medical Holding Company, Camp Zama, Japan on 26 March 1969 and further assigned to the Medical Holding Company at Fort Benning, GA on 6 April 1969 for further medical treatment.

4.  A review of his available record shows:

	a.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 June 1969 for being absent without leave (AWOL) from on or about 3 June 1969 to on or about 5 June 1969.

	b.  in Item 44 (Time Lost under Section 972, Title 10, U.S. code and Subsequent to Normal Date ETS) of his DA Form 20 the following entries:

FROM
TO (INCLUSIVE)
DAYS
REASON
3 June 1969
6 June 1969
2
AWOL
1 August 1969
29 August 1969
29
AWOL
30 August 1969
25 September 1969
26
Dropped from the Rolls (DFR)
26 September 1969
26 August 1970
335
Confined Civil Authorities
27 August 1970
15 April 1971
232
Civil Authorities after expiration of term of service (ETS)
5.  in Item 42 (Remarks) the following continuation of the entry in item 44:

	a.  On 24 November 1969, the Pike County Superior Court, Zebulon, GA convicted him of burglary (21 August 1969) and two counts of arson 
(10 September 1969).  He was sentenced to 3 years in prison.

	b.  On 3 April 1970 , the Clayton County Superior Court, Jonesboro, GA convicted him of car theft (10 September 1969) and sentenced him to 4 years in prison.

6.  His separation packet in not available.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that on 15 April 1971, he was discharged under the provisions of Army Regulation 635-206 (Personnel 


Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), based on his conviction by a civil court during his current term of active military service.  His DD Form 214 shows he was issued an Undesirable Discharge Certificate.  It also shows he completed 11 months and 3 days of total active service with 393 days of lost time.  The highest rank/pay grade he attained while serving on active duty was private first class (PFC)/E-3.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), the current regulation governing enlisted separations, sets forth the basic authority for the separation of enlisted personnel.  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.

10.  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.  The applicant contends his undesirable discharge should be upgraded because he was young and had a hard time dealing with his experience of being wounded in Vietnam after he returned stateside.

2.  Record shows he was approximately 20 years of age at the time of his first offense.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.
3.  His record reveals a disciplinary history that includes acceptance of NJP for being AWOL/DFR.  It also shows he was convicted and confined by civil authorities for burglary, arson, and car theft.

4.  The applicant's official military personnel file is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does include a DD Form 214 that identifies the authority and reason for his discharge.  It confirms he was separated due to a civil conviction resulting in civil confinement in excess of 1 year.  As a result he was appropriately separated with an undesirable discharge.

5.  Given his record of misconduct and the civil conviction that ultimately led to his discharge, his overall record of service does not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and does not support an upgrade at this time.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 in regard to upgrading his discharge.  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)                                         AR20110017907



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ABCMR Record of Proceedings (cont)                                         AR20110017907



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