BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120019458 


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 rank/grade be changed from private (PV1)/E-1 to corporal (CPL)/E-4 and the separation program number (SPN) of 264 be deleted from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also requests reconsideration of his earlier request to upgrade his undesirable discharge.

2.  The applicant states:

	a.  after he entered the Army and served in Vietnam he was discharged in direct contravention to the protections of the Constitution of the United States of America, namely the right to counsel, the right to due process of law, and the protections afforded by the Eighth Amendment against cruel and unusual punishment.

	b.  while performing his duties in the chow hall in Vietnam, he was sucker-punched by a specialist five (SP5)/E-5 because he would not give him food.  He was subsequently assaulted by the same SP5 in the barracks.  The mess sergeant told him to return to his unit and report the incident to the first sergeant.  The first sergeant advised him to speak to a legal advisor.  He sought the advice of a legal professional and he was directed to a specialist four (SP4)/E-4.  The SP4 told him "They're out to hang you and if I were you I'd file for a betterment of the Army discharge."  His request to see an attorney was denied.


	c.  his first sergeant told him to contact all persons who witnessed the incidents and take statements.  When he attempted to contact the witnesses he was told they had all been moved to the field.  Other witnesses were routed to a forward area and when he sought permission to make contact with them and take statements he was denied.

	d.  his unit commander told him he would authorize a general discharge and he would avoid a court-martial and possible criminal charges.  He was also told he was being rotated back to the United States and the new commanding officer could downgrade the discharge if he chose to.  The new commanding officer downgraded his discharge to an undesirable discharge.

	e.  a review of his records will conclude:

		(1)  he was denied the right to gather evidence to present in his defense;

		(2)  he was twice assaulted by a senior noncommissioned officer (NCO);

		(3)  he was denied the right to counsel in order to build and present a defense;

		(4)  he was denied the right to any due process protections prior to, during, and after the issuance of the undesirable discharge; and 

		(5)  his assigned ranking NCOs and commissioned officers failed to conduct an investigation into this incident and to provide proper advice and assistance to him.

3.  The applicant provides a copy of his DD Form 214.

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 requests reconsideration of his earlier request to upgrade his undesirable discharge.  This issue was previously considered by the ABCMR on 16 April 1975 and denied.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15 governs requests for reconsideration.  Paragraph 2-15b of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and has not previously been reconsidered.  The ABCMR staff reviewed the applicant's request and determined his request pertaining to upgrade of his undesirable discharge was not received within 1 year of the ABCMR's original decision.  As a result, his request pertaining to this issue does not meet the criteria for reconsideration by the ABCMR.  The applicant is advised the next remedy is appeal to a court of appropriate jurisdiction.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the Regular Army on 6 March 1967 for a period of 
3 years.  He completed his training and he was awarded military occupational specialty 94B (cook).

4.  On 19 August 1967, while assigned to Fort Wainwright, AK, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful written order by a general officer by having an alcoholic beverage in his possession in the billets.

5.  He arrived in Vietnam on 3 February 1968.

6.  He attained the rank/grade of SP4/E-4 on 21 March 1968.

7.  On 17 August 1968, charges were preferred against the applicant for committing an assault upon a staff sergeant (SSG)/E-6 by cutting him on the neck with a dangerous weapon (a can opener).

8.  On 18 August 1968, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many 


or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf. 

9.  On 1 September 1968, he accepted NJP under the provisions of Article 15, UCMJ for having received a lawful order from a sergeant major (SGM) to remove his hat while in the mess hall, did treat the SGM with contempt while obeying the command.  His punishment included a reduction to private first class (PFC)/E-3.

10.  In November 1968, the separation authority, a lieutenant general, approved the applicant's request for discharge and directed the applicant be reduced to the lowest enlisted grade and be furnished an Undesirable Discharge Certificate.

11.  On 19 December 1968, he departed Vietnam en route to the United States for separation processing.  On 20 December 1968, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in the rank/grade of PV1/E-1 with an Undesirable Discharge Certificate and his service characterized as under other than honorable conditions.  He completed 1 year, 9 months, and 14 days of total active service.

12.  The DD Form 214 he was issued at the time shows in:

* item 5a (Grade, Rate, or Rank) the entry "PVT" (private)
* item 5b (Pay Grade) the entry "E-1"
* item 11c (Reason and Authority) the entry:

* "AR (Army Regulation) 635-212" (Personnel Separations - Discharge - Unfitness and Unsuitability)
* SPN 246 (Discharge for good of the service)

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 10-1 (Reductions) states that when the separation authority determines a Soldier is to be discharged from the service under other than honorable conditions the Soldier will be reduced to the lowest enlisted grade.

14.  Army Regulation 635-5-1 (Separation Documents) in effect at the time provides the specific authorities (regulatory or directive), reasons for separating 


Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It states that the SPN code of 246 is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service – in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his rank be restored to E-4.  However, since the separation authority directed the issuance of an Undesirable Discharge Certificate and his service was characterized as under other than honorable conditions, in accordance with the governing regulation he was reduced to the lowest enlisted grade.  Therefore, there is no basis for granting the applicant’s request to restore his rank to E-4.

2.  His 264 SPN code was administratively correct and in conformance with applicable regulations at the time of discharge.  Therefore, there is no basis for granting his request to delete his SPN code from his DD Form 214.

3.  It is noted that the entry in item 11c of the applicant's DD Form 214 indicates he was discharged under the authority of Army Regulation 635-212.  However, evidence of record shows he was actually recommended for and approved for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial as reflected by his assigned SPN code of 246.  Should the applicant desire to correct this administrative error he may do so by reapplying to this Board.

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)                                         AR20120019458



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ABCMR Record of Proceedings (cont)                                         AR20120019458



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