IN THE CASE OF:	  

		BOARD DATE:  26 September 2013

		DOCKET NUMBER:  AR20130001917 


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, in effect:

* he served honorably from 1 April 1964 to 18 June 1965
* he reenlisted on 19 June 1965 and served honorably in a combat situation (Vietnam) for 1 year; he earned two bronze service stars
* he was then stationed at Fort Hood, TX to complete his military obligation
* his mother became terminally ill with cancer
* she was alone and had no way of taking care of herself
* he requested a break from his obligations to take care of her, but his request was denied
* he went absent without leave (AWOL) and cared for his mother

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 18 June 1965 and 
17 June 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 enlisted in the Regular Army on 1 April 1964 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 91A (medical corpsman).  On 18 June 1965, he was honorably discharged for immediate reenlistment.  He reenlisted on 19 June 1965 for a period of 3 years.  

3.  On 6 July 1965, nonjudicial punishment (NJP) was imposed against him for being drunk and disorderly in public. 

4.  He arrived in Vietnam on 26 January 1966.

5.  On 4 November 1966, NJP was imposed against him for being in an off-limits bar, drinking on duty, and showing disrespect toward a first sergeant.

6.  On 11 December 1966, NJP was imposed against him for being AWOL from duty for 5 hours.

7.  He departed Vietnam on 19 January 1967.

8.  On 21 April 1967, he was convicted by a special court-martial of being AWOL from 3 March to 22 March 1967.  He was sentenced to confinement at hard labor for 3 months.  On 27 April 1967, the convening authority approved the sentence, but suspended the sentence to confinement for 6 months.  On 16 January 1968, the suspended sentence was vacated.   

9.  On 25 January 1968, he was convicted by a special court-martial of three specifications of being AWOL from 11 July to 3 August 1967, 8 August to
21 October 1967, and from 14 November to 27 December 1967.  He was sentenced to confinement at hard labor for 6 months and to forfeit $90.00 pay for 6 months.  On 8 February 1968, the convening authority approved the sentence.   





10.  On 1 May 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 habitual and discreditable acts of misconduct as the bases for this action.

11.  On 20 May 1968, after consulting with counsel and being advised of the basis for the contemplated separation action its effect and the rights available to him 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 discharge under conditions other than honorable was issued to him.  He also elected not to submit a statement in his own behalf.

12.  On 5 June 1968, the separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.  

13.  On 17 June 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, 3 months, and 11 days of total active service with 336 days of lost time.

14.  On 28 April 1980, the Army Discharge Review Board denied the applicant's request for a general discharge.

15.  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.

16.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) currently in effect, sets forth the basic authority 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 contends he served honorably in Vietnam.  However, the evidence shows he received two NJPs during his assignment in Vietnam.

2.  His record of service during his last enlistment included three NJPs, two special court-martial convictions, and 336 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.

3.  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.  

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

5.  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)                                         AR20130001917



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ABCMR Record of Proceedings (cont)                                         AR20130001917



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