IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120004530 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* His discharge was unjust
* He was court-martialed for refusing to obey orders to go into a combat situation knowing he and his buddies would probably not come back alive
* While he was in confinement his captain was convicted of war crimes and he was justified in not doing as ordered and he was released from prison 

3.  The applicant provides a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim).

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 ordered to active duty from the U.S. Army Reserve (USAR) on 17 August 1961 for training.  He was released from active duty on 
16 February 1962.  He was inducted into the Army of the United States on        23 May 1963.  He served as a light weapons infantryman in Korea and he was honorably discharged on 22 January 1965 for immediate enlistment in the Regular Army (RA).  He enlisted in the RA on 23 January 1965 for a period of     3 years.  He arrived in Vietnam on 25 September 1965.   

3.  On 20 July 1966, he was convicted by a general court-martial of disobeying two lawful commands (to go to the field with his platoon in Vietnam on 17 June 1966 and 23 June 1966).  He was sentenced to confinement at hard labor for 
1 year, to a forfeiture of $50.00 pay for 1 year, and reduction to pay grade E-1.  He returned to the United States on 21 July 1966.  On 10 August 1966, the convening authority approved the sentence.

4.  On 19 October 1966, the U.S. Army Board of Review found the findings of guilty and the sentence were correct in law and fact and approved only so much of the sentence as provided for confinement at hard labor for 6 months, a forfeiture of $50.00 pay for 6 months, and reduction to E-1.  The findings and sentence as modified was affirmed.  On 6 December 1966, the unexecuted portion of the sentence to confinement was remitted and he was restored to duty. 

5.  On 9 January 1968, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 1 to 4 January 1968 and failure to repair.

6.  On 17 May 1968, he was convicted by a special court-martial of being AWOL from 1 to 6 May 1968.  He was sentenced to confinement at hard labor for 
6 months and a forfeiture of $90.00 pay for 6 months.  On 24 May 1968, the convening authority approved the sentence but suspended the period of confinement at hard labor for 6 months.

7.  On 18 June 1968, he was discharged under honorable conditions (general discharge) under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 2, for expiration term of service.  He completed a total of 
6 years, 6 months, and 7 days of creditable active service with 148 days of lost time.
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 2, in effect at the time, provided for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

9.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he was released from prison because his unit commander was convicted of war crimes was noted.  However, the evidence shows the U.S. Army Board of Review affirmed only so much of his sentence as provided for confinement at hard labor for 6 months.  As a result, he was released early from confinement and restored to duty on 6 December 1966. 

2.  His record of service during his last enlistment included one NJP, one special court-martial conviction, one general court-martial conviction, and 148 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120004530



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ABCMR Record of Proceedings (cont)                                         AR20120004530



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