IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110018870 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  He states he served in Vietnam as a combat Soldier where his service was honorable.  He reenlisted in Vietnam and returned to the U.S. for 30 days of leave.  During this time, he unknowingly suffered from post-traumatic stress disorder (PTSD), became depressed, started using drugs, and did not return to Vietnam.  As a result, he committed murder and was sent to prison.  While in prison, he was given an undesirable discharge.  He is now 61 years old, and he feels he deserves to have his discharge upgraded to honorable because while he was in Vietnam he was awarded the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM) with two bronze service stars, and the Republic of Vietnam Campaign Medal (VCM).  His intentions were to return to Vietnam, complete his tour of duty, and return to the U.S. to become a career Soldier.  He would also like to have his discharge upgraded so he can show the Louisiana State Parole Board that he is putting forth effort to correct his past mistakes.

3.  He provides a self-authored statement.

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.  On 1 April 1969, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman) and assigned to duty in Vietnam.

3.  On 18 December 1969, while serving in Vietnam, he was honorably discharged to immediately reenlist.  He reenlisted on 19 December 1969.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 4 March 1970 to 22 May 1973 and in civilian confinement from 23 May 1973 to 29 July 1974. 

5.  On 15 January 1973, he entered a plea of guilty to murder in the 21st Judicial District Court, Parish of Livingston, State of Louisiana.  He was sentenced to be imprisoned at hard labor in the Louisiana Department of Corrections for the balance of his natural life.  

6.  On an unknown date, he signed a statement indicating he intended to appeal his conviction and sentence.  The available records do not show he did so.

7.  On 11 October 1973, he acknowledged receipt of notification that he was being recommended for separation under the provisions of Army Regulation 635-206 because of misconduct (civil conviction).  

8.  He acknowledged he had been advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.  He requested consideration of his case by a board of officers, personal appearance before such a board, and representation by appointed counsel.  He indicated he intended to submit statements in his own behalf.  

9.  The findings and recommendations of the board of officers are not included in the available records.

10.  On 9 July 1974, in a memorandum to the separation authority, the Staff Judge Advocate, Headquarters, III Corps and Fort Hood, Fort Hood, TX, confirmed the requirements of Army Regulation 635-206 had been fulfilled and there was sufficient information to warrant separation.  He recommended the separation authority approve the recommendation for separation.

11.  On 12 July 1974, the separation authority approved his discharge and directed he receive an Undesirable Discharge Certificate.  On 24 July 1974, he was discharged accordingly.  The DD Form 214 issued at that time shows he completed 11 months and 5 days of total active service with 1,602 days lost.  This DD Form 214 also shows he was awarded the NDSM, VSM with two bronze service stars, and VCM.

12.  His record documents no acts of valor or significant achievement warranting special recognition.

13.  On 12 December 1978, The Adjutant General informed him the Army Discharge Review Board had denied his request for a change in the type and nature of his discharge.

14.  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).  The regulation provided 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 Uniform Code of Military Justice was death or confinement in excess of 1 year.

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

   a.  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.

   b.  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.  Although not all of the documents pertaining to the applicant’s separation processing are available, in the absence of evidence to the contrary the available evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.  

2.  Shortly after he reenlisted, he went AWOL.  While AWOL, he committed murder.  He was convicted of the crime by a civilian court and sentenced to imprisonment for the remainder of his natural life.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20110018870





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ABCMR Record of Proceedings (cont)                                         AR20110018870



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