IN THE CASE OF:
BOARD DATE: 27 September 2012
DOCKET NUMBER: AR20120005704
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 upgrade of his undesirable discharge (UD) to a general discharge.
2. The applicant states he would like his discharge upgraded so he will be eligible for Department of Veterans Affairs (VA) benefits. He served in Vietnam and earned a Bronze Star Medal with "V" Device. When he returned to the states he could not cope with the Army and went absent without leave (AWOL) a number of times. When caught, he served bad time in the stockade. He was given the choice of serving an additional 30 days in the stockade and receiving a general discharge or being discharged with a UD. At the time he was young and irresponsible and he chose wrong.
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 applicants 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 applicants failure to
timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military record shows he enlisted in the Regular Army (RA), in pay grade E-1, on 19 September 1967, for 3 years. On the date of his enlistment in the RA, he was 18 years and 1 month of age. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. He served in Vietnam from 5 March 1968 through 4 March 1969. He was promoted to pay grade E-4 on 14 October 1968.
4. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:
* 4 November 1968 - being derelict in the performance of duty, sleeping while on guard duty
* 27 January 1969 - being derelict in the performance of duty, sleeping on guard duty
* 11 February 1969 - being derelict in the performance of duty, sleeping on his post
5. On 20 August 1969, he was convicted by a summary court-martial of one specification of being AWOL from 5 April to 21 June 1969.
6. On 25 November 1969, he was convicted by a special court-martial of one specification of being AWOL from 6 September to 9 October 1969. He was sentenced to confinement at hard labor for 2 months and a reduction to pay grade E-1. The sentence was approved on 3 December 1969 and ordered executed.
7. A DD Form 458 (Charge Sheet), dated 19 June 1970, was prepared by the Commander, Special Processing Detachment, Fort Riley, KS, showing he was charged with one specification of being AWOL from 21 February 1970 to 10 June 1970. The charges were submitted on 20 June 1970.
8. On 8 July 1970, he underwent a mental examination and it was determined that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. The applicant was found mentally responsible, able to distinguish rights from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.
9. All the documents containing the facts and circumstances surrounding his discharge are not present in the available records. However, his records contain:
a. DA Form 2496-1 (Disposition Form), dated 16 July 1970, wherein, after consulting with counsel, the applicant acknowledged the proposed separation action under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness. He waived his rights and elected not to submit a statement in his own behalf. He acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him. He also understood that as the result of a UD, he may be ineligible for any or all benefits as a veteran under both Federal and State laws.
b. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged in pay grade E-1 on 31 July 1970, under the provisions of Army Regulation 635-212. His service was characterized as under conditions other than honorable and he was issued a UD Certificate. He was credited with completing 1 year, 9 months, and 2 days of total active service and 401 days of lost time.
10. His DD Form 214 lists the following awards:
* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Bronze Star Medal
* Army Commendation Medal
* Air Medal
* Certificate of Service
* Marksman Marksmanship Qualification Badge with Rifle (M-14 and M-16) Bar
* First Class Gunner Qualification Badge with Machine Gun Bar (M-60)
11. There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.
12. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. A UD was normally considered appropriate for individuals separated by reason of unfitness.
13. Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.
14. Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his discharge should be upgraded has been carefully considered. However, the evidence of record shows after completion of his tour in Vietnam he was punished under Article 15 on three occasions for dereliction in the performance of his duties. He was also convicted by a summary court-martial and a special court-martial of periods of AWOL. On 20 June 1970, charges were preferred against him again for being AWOL.
2. The evidence of records shows after consulting with counsel, he acknowledged the proposed separation action for unfitness. He waived his rights and elected not to submit a statement in his own behalf. He also acknowledged the effects of the issuance a UD. He was discharged accordingly on 31 July 1970.
3. His contention that his youth and immaturity made him do the wrong thing is without merit. He was 18 years and 1 months of age when he enlisted in the RA. He was 20 years of age when he was first punished under Article 15 and convicted by courts-martial for misconduct. There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.
4. Notwithstanding his service in Vietnam and authorized awards, he has provided no evidence or argument to show his UD should be upgraded to a general discharge. His military records contain no matter upon which an upgrade should be granted. It appears his failure to meet acceptable standards for retention diminished the quality of his service below that meriting a general or an honorable discharge.
5. Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors which would tend to jeopardize his rights.
6. His desire to have his UD upgraded so that he can qualify for benefits is acknowledged. However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for burial, medical, and/or other benefits administered by the VA and/or other Federal and State agencies.
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.
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