IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110021448 


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, in effect, that his General Discharge (GD), under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP), be affirmed.   

2.  He states he served a tour of duty in Vietnam, which had a negative effect on him.  He had no control over how the war affected him and he did not set out to act the way he did.  He believes he earned the right to receive benefits.

3.  He did not provide any additional documentation.  

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 16 March 1965.  After the completion of training, he served in military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  His DA Form 20 (Enlisted Qualification Record) shows the following entries:

* Item 31 (Foreign Service) – he completed a tour of duty in Vietnam from August 1965 through August 1966
* Item 33 (Appointments and Reductions) – the highest rank he attained was private first class/E-3
* Item 41 (Awards and Decorations) – no significant decorations or acts of valor warranting special recognition

4.  His record contains a DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 8 January 1966.  This document shows he was administered nonjudicial punishment (NJP) for disobeying a lawful order while in Vietnam.  

5.  Summary Court-Martial Order Number 166, dated 22 December 1966, shows he committed the following offenses:

* Assault
* Striking another Soldier
* Disobeying a lawful order
* Missing formation

6.  In February1967, he was convicted by a special court-martial of disobeying a lawful command from a superior officer and of being absent without leave (AWOL) and in July 1967 by a special court-martial for assault.

7.  A Report of Neuropsychiatric Evaluation shows he was given a mental status examination on 12 July 1967.  He was found to have emotional instability.  He was psychiatrically cleared for separation under the provisions of Army Regulation 635-212 (Personnel Separations). 

8.  On 29 July 1967, the unit commander advised the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unfitness.  His commander noted that he had three court-martial convictions and that during counseling sessions, he was disrespectful and hostile.  His past record and attitude toward the military proved that the stockade had done little in rehabilitating him. 

9.  On 11 August 1967, he consulted with counsel regarding his separation for unfitness under the provisions of Army Regulation 635-212.  He waived his right to have his case considered by a board of officers and to personally appear before that board.  He also elected not to submit any statements on his own behalf.

10.  On 20 September 1967, the General Court-Martial Convening Authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness.  He directed the applicant be issued an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged on 27 September 1967, under the provisions of Army Regulation 635-212, for unfitness.  His DD Form 214 (Report of Separation from Active Duty) shows he was given a separation program number (SPN) of 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities) and was separated under other than honorable conditions, in pay grade E-1.  He had completed 1 year, 
10 months, and 1 day of total service for pay and had 233 days of lost time due to absence without leave (AWOL) and confinement.  

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop the individual as a satisfactory Soldier were unlikely to succeed.

13.  On 2 October 1978, he was notified by the Office of The Adjutant General and The Adjutant General Center, Washington, DC, that his application for upgrade of his discharge under the DOD SDRP was considered by the Army Discharge Review Board (ADRB), under the provisions of Public Law 95-126 and his UOTHC discharge had been upgraded to a GD, under honorable conditions, effective 27 June 1977.  However, his GD was not affirmed.

14.  A DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued which stated his discharge was reviewed in accordance with Public Law 95-126 and a determination was made that changed his character of service under the provisions of DOD SDRP, dated 4 April 1977.

15.  The DOD-SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 4 August 1964 and 28 March 1973, inclusive.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act of misconduct that would be subject to criminal prosecution under civil law.

16.  The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  His request to affirm his GD was carefully considered.  His entire record of service was taken into consideration to include his personal history and contentions.  His service was not sufficient to warrant an affirmation of his discharge.

2.  The ADRB upgraded his UOTHC to a GD under the provisions of DOD-SDRP on 27 June 1977; however, this upgrade was not affirmed under the provisions of discharge review standards established by the Department of the Army in accordance with Public Law 95-126.  

3.  The evidence shows that the applicant had behavioral problems but no mental disorder.  He had been administered NJP while serving in Vietnam and was convicted by court-martial on several occasions.  He had 233 days of lost time due to numerous periods of AWOL and confinement.   

4.  He was properly separated on 27 September 1967 in accordance with regulations then in effect and there is no indication of procedural errors, which would have jeopardized his rights.  The type of discharge directed and the reason for discharge is appropriate considering the facts of the case.

5.  As a result, his service was not sufficient to warrant an affirmation of his GD.

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)                                         AR20110021448





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ABCMR Record of Proceedings (cont)                                         AR20110021448



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