IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017268 


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 a general discharge.

2.  The applicant states:

* After completion of military occupational specialty (MOS) training, he served in Germany and in Vietnam; his Vietnam tour had a great impact on him
* Upon completion of his tour, he was reassigned to Fort Hood, TX, but he wanted to be at Fort Polk, LA, close to his family
* He attempted a hardship discharge but his chain of command did not respond positively; they would place him on various details
* He went absent without leave (AWOL) on multiple occasions but he was never gone more than 30 days
* He needed help but there was no one to help him
* He was handed his discharge papers while in confinement at Fort Polk, LA
* Most people who went to Vietnam never received any type of help which made it hard to adjust

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Congressional correspondence

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's records show he enlisted in the Regular Army on 16 February 1966.  He completed basic combat and advanced individual training and he was awarded MOS 63B (Wheel Vehicle Mechanic).  

3.  On 13 May 1966, while still in training at Fort Polk, LA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 11 to 12 May 1966.

4.  He served in Germany from 17 July 1966 to 8 March 1967.  He was subsequently issued assignment instructions to Vietnam.  

5.  On 4 May 1967, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from the overseas replacement station in Oakland, CA, from 15 April to 3 May 1967.

6.  He served in Vietnam from 11 May 1967 to 9 May 1968.  He was assigned to the 1st Battalion, 18th Infantry.

7.  On 6 June 1967, while in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for operating a military vehicle while drunk.

8.  On 25 January 1968, also while in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully transporting local Vietnamese nationals after curfew. 

9.  Subsequent to completion of his Vietnam tour, he was assigned to the 3rd Squadron, 1st Cavalry Regiment, 3rd Armored Division, Fort Hood, TX. 

10.  On 4 February 1969, at Fort Hood, he was convicted by a special court-martial of one specification of AWOL from 30 December 1968 to 27 January 1969.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of pay for 6 months, and confinement at hard labor for 6 months.  The convening authority approved his sentence on 4 February 1969.

11.  He was reassigned to the Correctional Training Battalion of the U.S. Army Correctional Training Facility at Fort Riley, KS.  

12.  On 15 March 1969, at Fort Riley, he was convicted by a special court-martial of two specifications of willfully disobeying orders from his superiors.  The court sentenced him to confinement at hard labor for 6 months.  The convening authority approved his sentence on 21 March 1969.

13.  On 23 September 1969, back at Fort Hood, he was convicted by a special court-martial of one specification of AWOL from 18 July to 18 September 1969. The court sentenced him to a forfeiture of pay and confinement at hard labor for one month.  The convening authority approved his sentence on 23 September 1969.

14.  On 17 February 1970, now at Fort Polk, LA, he was convicted by a special court-martial of three specifications of AWOL from 1 to 14 October 1969, 16 October to 26 November 1969, and 29 November 1969 to 5 January 1970.  The court sentenced him to a forfeiture of pay and confinement at hard labor for 5 months and a forfeiture of pay.  The convening authority approved his sentence on 20 February 1970.

15.  On 5 March 1970, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  He stated that the applicant had been convicted by court-martial on 5 separate occasions for multiple infractions.  He had shown a complete lack of motivation and rehabilitation.  He had a discreditable past and a negative attitude toward the Army.  The commander recommended an undesirable discharge.  

16.  The applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.  He acknowledged he understood: 
* He may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him
* As a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 

17.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unfitness with an under other than honorable conditions discharge. 

18.  The applicant underwent a mental status evaluation.  He was found mentally responsible, able to distinguish right from wrong, able to adhere to the right, and met the retention standards.  He was cleared for separation from the military under the provisions of Army Regulation 635-212.

19.  On 7 March 1970, the applicant's intermediate and senior commanders recommended approval of the discharge with the issuance of an undesirable discharge.

20.  Consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 7 March 1970.

21.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness with a separation program number (SPN) of 28B (unfitness).  His character of service was under other than honorable conditions.  He completed 2 years, 2 months, and 15 days of total active service and he had 310 days of lost time.

22.  On 25 January 1978, he enlisted in the Regular Army.  However, by April 1978, his chain of command recognized he entered the Army fraudulently and immediately initiated separation action against him.  He was discharged on 11 May 1978 with no character of service. 

23.  On 30 October 1981, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged.  The ADRB voted unanimously to deny his petition for an upgrade of his discharge.

24.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided 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.

25.  Army Regulation 635-200 (Personnel Separations - 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

26.  Army Regulation 635-200, paragraph 3-7b, states 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 evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his four instances of NJP, five court-martial convictions, and a repeated pattern of AWOL and complete disregard of the Army.  Accordingly, his chain of command initiated elimination action against him.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of service is commensurate with his overall record of military service.  

2.  With respect to his arguments:

	a.  Contrary to his contention that he was never AWOL for more than 30 days, the evidence of record shows he was convicted on 23 September 1969 for being AWOL from 18 July to 18 September 1969 and on 17 February 1970 for being AWOL from 16 October to 26 November 1969 and from 29 November 1969 to 5 January 1970.  Each of these periods of AWOL was over 30 days.  

	b.  Contrary to his contention that his Vietnam service affected his behavior, the evidence of record clearly shows his misconduct occurred prior to, during, and after his service in Vietnam.  

3.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, he is not entitled to an upgrade of his 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)                                         AR20120017268





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ABCMR Record of Proceedings (cont)                                         AR20120017268



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