IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120002719 


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, under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP), be affirmed and further upgraded to an honorable discharge.   

2.  He states he had no control of his future in the Army once he reached his unit in Vietnam.  His platoon leader put him through a tough time and trapped him by hiding his rank.  

3.  He adds:

* he was a model Soldier and a member of the 450 Club during his initial entry training
* he took his training seriously and was proud to be in the Army
* upon his arrival in Vietnam, he was standing around looking for a place to lay his bags when he heard someone yell "incoming"
* he looked up in the sky and that is when sand got into his eyes
* several guys were laughing and he asked who threw the sand 
* his platoon leader (who was not wearing his rank) said he did and asked why
* the applicant told him not to do it again and at that time the platoon leader put on his rank
* once he saw his rank, he addressed him as sir and said, please don't do it again
* his platoon leader held a grudge from that point and targeted him by not rotating him as point man during search and destroy missions
* he even sent him through wooded areas to destroy the enemy after many other Soldiers were wounded or killed
* his platoon leader did everything he could to make life hard for him and even counted him as absent without leave (AWOL) when he was late arriving to the landing zone
* he believes he should not have to suffer for something he had no control over and asks the Board to take this into consideration as his case is reviewed

4.  The applicant provides a photograph of himself. 

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 was inducted into the Army of the United States on 20 October 1967 and was awarded military occupational specialty 11B (Light Weapons Infantryman). 

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

* Item 31 (Foreign Service) – he was stationed in Vietnam from April 1968 to December 1969
* Item 33 (Appointments and Reductions) – the highest rank he attained was private first class/E-3
* Item 41 (Awards and Decorations) – he earned the Combat Infantryman Badge 

4.  The applicant's DA Form 20 also shows that during his tour in Vietnam, he went AWOL nine times and was confined twice totaling 343 days of lost time.  

5.  His records contain a DA Form 20B (Insert Sheet to DA Form 20) which shows he was tried twice by special court-martial, on 23 July 1968 and 10 July 1969. 
6.  On 7 November 1969, the applicant's chain of command notified him of their intent to recommend he be separated from the Army under the provisions of Army Regulation 635-212 (Personnel Separations) for unfitness.  The basis for the recommendation was his past history of commission of court-martial offenses which included nine occasions of AWOL and willfully disobeying a lawful order from his superior officer.  

7.  On 10 November 1969, the applicant 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.

8.  A Report of Psychiatric Evaluation shows he was given a mental status examination on 12 November 1969.  The psychiatrist noted the applicant had a passive-aggressive personality, acute, mild, manifested by evasion of duty, resistance of military authority, and inefficiency which existed prior to service.  He was psychiatrically cleared for separation under the provisions of Army Regulation 635-212.

9.  On 16 November 1969, 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 chain of command supported the request and recommended he be issued a DD Form 258 (Undesirable Discharge Certificate).

10.  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 reduced to the grade of private/E-1 and he be issued an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged on 15 December 1969, 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, 
2 months, and 13 days of total service for pay and had 343 days of lost time due to 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 15 July 1977, 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 under other than honorable conditions discharge had been upgraded to a general discharge, under honorable conditions, effective 16 June 1977.  

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.  However, his general discharge was not affirmed. 

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.  

16.  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. 

17.  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.

18.  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.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separation) sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.  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 general discharge and further upgrade it to an honorable discharge was carefully considered.  His entire record of service was taken into consideration to include his personal history and contentions.  

2.  The ADRB upgraded his under other than honorable conditions discharge to a general discharge, under honorable conditions under the provisions of DOD-SDRP on 16 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 a passive-aggressive personality but no mental disorder.  He had been convicted by a special court-martial twice while serving in Vietnam and had 343 days of lost time due to numerous periods of AWOL and confinement.   

4.  He was properly separated on 15 December 1969 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 and/or upgrade of his 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)                                         AR20120002719





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002719



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1