IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120012059 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he was discharged on 7 February 1973 and, on 4 April 2012, his discharge document was corrected to show award of the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 215 (Correction to
DD Form 214), and 13 letters in support of his application.

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 25 March 1969 for a period of
3 years.  He was awarded military occupational specialty 76A (Supply Clerk).

3.  Summary Court-Martial Order Number 387, issued by Headquarters, Special Processing Detachment, Fort Riley, Kansas, dated 3 December 1969, shows the applicant was tried at a summary court-martial in December 1969.

   a.  He pled guilty to and was found guilty of absenting himself from his unit from 23 August to 30 October 1969.

	b.  His sentence was adjudged on 3 December 1969.  It provided for the forfeiture of $50.00 for 1 month and 60 days of restriction.  The sentence was approved on 3 December 1969.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 23 December 1969.

5.  The applicant served in the Republic of Vietnam from 9 August 1970 through 
16 August 1971.

6.  Special Court-Martial Order Number 218, issued by Headquarters Command, Fort Campbell, Kentucky, dated 25 October 1972, shows the applicant was tried at a special court-martial in September 1972.

   a.  He pled guilty to and was found guilty of two specifications of absenting himself from his unit, from 7 November 1971 to 2 May 1972 and from 3 July to
16 August 1972.

	b.  His sentence was adjudged on 18 September 1972.  It provided for reduction to the grade of private (E-1) and confinement at hard labor for
4 months.  The sentence was approved on 25 October 1972.

   c.  On 29 November 1972, the special court-martial convening authority suspended the unexecuted portion of the approved sentence to confinement at hard labor for 4 months until 17 January 1973, at which time, unless sooner vacated, the suspended portion of the sentence was to be remitted without further action.

7.  Summary Court-Martial Order Number 1, issued by Headquarters,
2nd Battalion (Correctional Training), U.S. Army Retraining Brigade, Fort Riley, Kansas, dated 29 January 1973, shows the applicant was tried at a summary court-martial in January 1973.
   a.  He pled guilty to and was found guilty of absenting himself from his unit from 31 December 1972 to 9 January 1973.

	b.  His sentence was adjudged on 25 January 1973.  It provided for the forfeiture of $200.00 for 1 month and 30 days of restriction.  The sentence was approved on 29 January 1973.

8.  A review of the applicant's records failed to reveal a copy of his separation packet.

9.  Headquarters, U.S. Army Retraining Brigade, Fort Riley, Kansas, Special Orders Number 26, dated 5 February 1973, discharged the applicant from the Army on 7 February 1973, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Unfitness), and he was issued a DD From 258A (Undesirable Discharge) certificate.

10.  The applicant's DD Form 214 shows he entered active duty this period on
25 March 1969 and he was discharged on 7 February 1973 under the provisions of Army Regulation 635-200, chapter 13, with Separation Program Number 28B for unfitness based on frequent involvement in incidents of a discreditable nature with authorities.  His service was characterized as under conditions other than honorable.  

   a.  He completed 2 years, 7 months, and 2 days of net active service this period and he had 234 days of time lost under Title 10, U.S. Code, section 972.

   b.  He was awarded the Purple Heart, National Defense Service Medal, and Vietnam Service Medal with 2 bronze service stars.

11.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

12.  In support of his application the applicant provides 13 letters of support that show the applicant:

* is a homeless Vietnam veteran
* volunteers to help his neighborhood organization (Helping Hands) distribute food to the elderly
* does volunteer work as a handyman for senior citizens in the neighborhood
* is a hard worker and a kind man of good character

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, applied to separation for unfitness and unsuitability.  It shows that separation action will be taken when, in the commander's judgment, the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.

	a.  Chapter 3, 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.  Chapter 3, 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.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to an honorable discharge based on the fact that he recently received the Purple Heart and also on his post-service conduct.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has not provided any evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge directed appears to have been appropriate.


3.  The evidence of record shows the applicant:

* received NJP on 1 occasion
* was convicted at 2 summary courts-martial and 1 special court-martial
* had a total of 234 days of time lost

4.  Thus, the applicant's character of service during the period of service under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  The applicant's award of the Purple Heart as a result of being wounded in action in Vietnam is acknowledged.  The letters of support regarding his post-service achievements and conduct were also considered.  However, his good post-service conduct is insufficient as a basis for upgrading his discharge.
Thus, he is not entitled to an honorable or general discharge.

6.  Therefore, in view of all of the foregoing, there is no basis for granting the 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)                                         AR20120012059



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ABCMR Record of Proceedings (cont)                                         AR20120012059



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