IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009611 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that after returning home from his service in the Republic of Vietnam he had a hard time coping with stateside duty and the way civilians  seemed to hate the Soldiers who served in Vietnam.  He further states he volunteered to return to Vietnam, but was refused.  Subsequently, he went absent without leave (AWOL), started getting into trouble, and landed in and out of jail.  In 1975, he met his wife and has been married for 37 years, raised two sons, and retired after 30 years as a truck driver.     

3.  The applicant provides a self-authored statement and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 11 August 1966.  He completed training and he was awarded military occupational specialty 76A (Supplyman).

3.  He served in Vietnam from 5 June 1967 to 4 June 1968.  He was awarded the National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).  

4.  While serving in the Republic of Vietnam, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 9 September 1967, possessing and indulging in alcoholic beverages while on duty or within four hours prior to scheduled duty
* 19 November 1967, failing to go at the time prescribed to his appointed place of duty

5.  On 2 December 1968, he was convicted by a special court-martial of one specification of AWOL for the period 1 August through 7 November 1968.  The Court sentenced him to reduction in grade to private/E-1, confinement at hard labor for 4 months (suspended for 4 months unless sooner vacated), and a forfeiture of $50.00 pay for 4 months.  The convening authority approved his sentence on 9 December 1968.

6.  On 19 March 1969, he was found guilty by a civil court of the civilian charges of interstate transportation of a stolen motor vehicle.  The civilian court sentenced him to be placed on 5 years probation.

7.  On 23 April 1969, suspension of the unexecuted portion of his confinement at hard labor for 4 months was vacated and ordered to be duly executed.

8.  On 6 May 1969, he was convicted by a summary court-martial of one specification of AWOL for the period 22 July through 8 September 1969.  The court sentenced him to be confined to hard labor for 30 days (suspended for      


30 days unless sooner vacated) and to forfeit $82.00 for one month.  The convening authority approved his sentence on 13 October 1969.

9.  On 29 January 1971, the applicant's probation stemming from his conviction by a civilian court of interstate transportation of a stolen motor vehicle was revoked.  It was adjudged that he be committed to the custody of the Attorney General or his authorized representative for treatment and supervision until discharged by the Federal Youth Corrections Division of the Board of Parole.

10.  While confined at the Federal Correctional Institution in Lompoc, CA, the applicant was sent a letter from an assistant adjutant on 25 March 1971,  notifying him that under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) persons who have been convicted by civil authorities, or against whom action has been taken amounting to conviction, for an offense punishable under the UCMJ by confinement in excess of 1 year must be considered for separation from service.  The applicant responded to the letter indicating he:

* waived consideration of his case by a board of officers
* waived personal appearance before a board of officers
* waived representation by military counsel or civilian counsel at his own expense
* was not submitting a statement in his own behalf

11.  He further acknowledged that he understood that as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

12.  On 14 May 1971, subsequent to a legal review for sufficiency, the applicant was discharged under the provisions of Army Regulation 635-206 for misconduct by reason of civil conviction.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years, 2 months, and 24 days of total active service with 920 days of lost time.

13.  On 23 September 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by 


civil court, and absence without leave or desertion).  That regulation provided, in part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

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

   a. 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.

   b.  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 was discharged under the provisions of Army Regulation
635-206, by reason of a civil conviction.  He was convicted by a civilian court of interstate transportation of a stolen vehicle and he was sentenced to imprisonment.  As required by the applicable regulation at the time, separation action was initiated against him and he was notified of this action.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Notwithstanding his service in the Republic of Vietnam, his conviction clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by multiple instances of NJP and two courts-martial.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to an honorable or a general 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)                                         AR20120009611



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ABCMR Record of Proceedings (cont)                                         AR20120009611



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