IN THE CASE OF:	  

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120006908 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states:

* when he was discharged he was told his discharge would be upgraded to honorable 
* he served honorably in Vietnam
* he enlisted twice
* it was difficult for him when he learned he was going back to Vietnam
* he went absent without leave (AWOL) out of panic recalling his first tour in Vietnam when many were killed
* he tried his best at a young age

3.  The applicant provides DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 16 April 1965 and 
26 January 1968. 

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 born on 6 April 1945.  He enlisted in the Regular Army on 10 June 1963 for a period of 3 years.  He completed his training and was awarded military occupational specialty 31L (field carrier equipment repairman).  On 16 April 1965, he was honorably discharged for immediate reenlistment.  He reenlisted on 17 April 1965 for a period of 3 years.  He arrived in Vietnam on 
16 April 1966.     

3.  On 4 May 1966, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order.

4.  On 28 December 1966, NJP was imposed against the applicant for two specifications of being AWOL from his unit (4 hours on 7 December 1966 and 
6 hours on 19 December 1966).

5.  He departed Vietnam on 5 April 1967.

6.  On 21 December 1967, he was convicted by a special court-martial of being AWOL from 8 June 1967 to 30 November 1967.  He was sentenced to be confined at hard labor for 6 months and to forfeit $86.00 pay for 6 months.  On 29 December 1967, the convening authority approved the sentence.  

7.  On 16 January 1968, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited the applicant’s 2 NJPs and 1 special court-martial conviction.

8.  After consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He also elected not to submit a statement in his own behalf.



9.  On 19 January 1968, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.  

10.  On 26 January 1968, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed a total of 3 years, 11 months, and 7 days of total active service with 248 days of lost time.

11.  There is no evidence in the available record that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 sets forth the basic authority 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.

14.  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.

15.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends when he was discharged he was told his discharge would be upgraded to honorable.  However, a discharge upgrade is not automatic.
2.  He contends he tried his best at a young age.  However, age is not a sufficiently mitigating factor.  He was 18 years old when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

3.  He contends he served honorably in Vietnam.  However, evidence shows he received 2 NJPs during his assignment in Vietnam.

4.  His record of service during his last enlistment included two NJPs, one special court-martial conviction, and 248 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

7.  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)                                         AR20120006908





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ABCMR Record of Proceedings (cont)                                         AR20120006908



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