IN THE CASE OF:	  

		BOARD DATE:  14 June 2012

		DOCKET NUMBER:  AR20110024677 


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, an upgrade of his undesirable discharge.

2.  The applicant states he was 20 years old and became addicted to drugs
3 days after arriving in Vietnam.  It has been 40 years since his discharge and he would like to request amnesty.

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.  On 27 October 1967, the applicant enlisted in the Regular Army (RA) at the age of 19 years, 1 month, and 16 days.  He completed training and he was 


awarded military occupational specialty 11B (light weapons infantryman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  He was subsequently assigned to Company A, 1st Battalion (Airborne),
325th Infantry Regiment, 82nd Airborne Division, Fort Bragg, NC on 2 April 1968.

4.  On 28 June 1968, he was convicted by a general court-martial of one specification of involuntary manslaughter.  The Court sentenced him to a dishonorable discharge, confinement at hard labor for 2 years, forfeiture of all pay and allowances, and reduction to private (PV1)/E-1.  The convening authority approved his sentence on 3 July 1968.  Pending completion of appellate review, the applicant would be confined in the U.S. Army Disciplinary Barracks, Fort Leavenworth, KS.

5.  On 6 February 1969, he submitted an application to the Office of the Provost Marshal General, Washington, D.C., for restoration to active duty so that he could earn a discharge under honorable conditions.  However, his request was denied by that office on 1 April 1969.

6.  On 10 April 1969, the U.S. Army Court of Military Review Army affirmed the approved findings of guilty and the sentence.

7.  On 11 June 1969, the applicant submitted another application to the Office of the Provost Marshal General for restoration to active duty.

8.  On 7 July 1969, the U.S. Military Appeals denied his petition to grant a review.

9.  General Court-Martial Order Number 699, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, dated 16 July 1969, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the dishonorable discharge executed.

10.  On 11 August 1969, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1a, as a result of court-martial with a dishonorable discharge.  He completed 6 months and 11 days of net active service with 461 days of time lost due to confinement.

11.  On 17 September 1969, the Secretary of the Army approved his request for restoration to active duty and directed his transfer to Fort Riley, KS, for correctional training.


12.  His record contains a memorandum from The Adjutant General, subject:  Restoration of Duty, dated 5 November 1969, wherein it states:

	a.  Upon successful completion of the required period of training in the correctional training program the unexecuted portion of his sentence to confinement will be remitted.

	b.  Once his sentence is remitted he will be restored to duty to complete a new term of service equal to the unserved portion of his prior enlistment, or if he elects, he will be enlisted into the RA.

	c.  If he is restored to duty to complete his term of service entered into under the enlistment terminated by the execution of the dishonorable discharge, he will be informed that restoration to duty in this manner does not constitute a revivification of his former enlistment, but is in effect a new enlistment.

	d.  He will be advised that it leaves unaffected the prior discharge and period of service covered in it, insofar as entitlements to veterans benefits based thereon is concerned.

13.  His record contains a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows he enlisted in the RA on 17 November 1969 for a period of 2 years, 5 months, and 19 days.

14.  On 9 December 1969, he was assigned to Company C, 2nd Battalion,
50th Infantry, 2nd Armored Division, Fort Hood, TX.

15.  On 14 November 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for biting a noncommissioned officer (NCO) on the earlobe with his teeth.

16.  On 9 December 1970, he departed Fort Hood en route to Vietnam.  He arrived in Vietnam on 21 January 1971.  On 10 February 1971, he was assigned to Company D, 5th Battalion, 7th Cavalry, 1st Cavalry Division.  On 27 March 1971, he was reassigned to the 359th Transportation Company.

17.  On 13 April 1971, he was convicted by a special court-martial of one specification of failing to obey a lawful order by being in an off-limits area, one specification of assault by striking an NCO with his fists in the shoulder and neck, and one specification of wrongfully possessing one vial of heroin. 


18.  Special Court-Martial Order Number 15, issued by Headquarters,
86th Maintenance Battalion, dated 25 June 1971, shows he was sentenced him to confinement at hard labor for 3 months, forfeiture of $50.00 pay per month for 6 months, and reduction to PV1/E-1.  However, the sentence to confinement at hard labor was suspended for 3 months.  The convening authority approved the sentence on the same day.

19.  Special Court-Martial Order Number 21, issued by Headquarters, U.S. Army, Transportation Terminal Unit, dated 20 July 1971, ordered the suspension of the confinement at hard labor for 3 months be vacated and duly executed.  The order further stated he would be confined in the U.S. Army Vietnam Installation Stockade or elsewhere as directed.

20.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:  

	a.  A DA Form 3082-R (Statement of Medical Condition), dated 14 October 1971, showing he received a separation medical examination.

	b.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 14 October 1971, that shows he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability) in the rank/grade of PV1//E-1 with an undesirable discharge.  He was assigned a Separation Program Number (SPN) of 28B.  The DD Form 214 further shows he completed 1 year, 8 months, and
5 days of net active service this period with 83 days time lost.

21.  On 26 September 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

22.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

23.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  At the time of the applicant's separation, it stated, that the SPN code of 28B was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-212, by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities), with a corresponding reentry eligibility (RE) code of RE-3.

24.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), governs the policies and procedures 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.  The applicant contends his discharge should be upgraded because he was only 20 years old and addicted to drugs 3 days after arriving in Vietnam.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  In addition, his misconduct started before he arrived in Vietnam.

2.  His record is void of the complete facts and circumstances that led to his discharge.  However, his record contains two court-martial convictions, NJP, and a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212 and issued an Undesirable discharge Certificate.

3.  There is no evidence of record and he has not provided any evidence that shows he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  Based on his overall record of service, he clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

5.  The ABCMR does not upgrade discharges based solely on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the applicant requested relief.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20110024677



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ABCMR Record of Proceedings (cont)                                         AR20110024677



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