BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120004558 


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 an upgrade of his "dishonorable discharge" (i.e., his undesirable discharge) to a general discharge.

2.  The applicant states he served in Vietnam.

3.  The applicant did not provide any 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.  The applicant was inducted into the Army of the United States on 24 February 1970 and held military occupational specialty 64A (Light Vehicle Driver).  He served in Vietnam from 30 December 1970 to 30 October 1971.  

3.  While in Vietnam, he was honorably discharged on 9 June 1971 for the purpose of enlisting in the Regular Army (RA).  He enlisted in the RA on 10 June 1971.

4.  His records also show he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and one overseas service bar.  

5.  His service record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on/for:

* 4 February 1972, failing to go to his appointed place of duty at the time prescribed
* 17 February 1972, being absent without leave (AWOL) on 16 February 1972
* 10 July 1972, being AWOL from 5 to 6 July 1972

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

	a.  Special Orders Number 307, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, reducing him to private E-1, effective 2 November 1972.

	b.  Special Orders Number 307, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 2 November 1972, discharging him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), effective 7 November 1972, with the issuance of an Undesirable Discharge Certificate.

	c.  A duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 7 November 1972 under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.  He completed 1 year, 
4 months, and 28 days of active service during the period under review.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.  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.

10.  Army Regulation 635-200, 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’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 7 November 1972 under the provisions of Army Regulation 
635-212 by reason of unfitness. 

2.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.

3.  The applicant did not receive a dishonorable discharge.  Such discharge can only be adjudged by a general court-martial.  This is not the case here.  Additionally, the applicant's service in Vietnam is noted.  However, this service does not automatically entitle him to an upgrade of his discharge.  

4.  It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, his service appears not to merit an upgrade of his discharge.  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)                                         AR20120004558



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ABCMR Record of Proceedings (cont)                                         AR20120004558



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