BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130002373 


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.  He states he wants his discharge upgraded to show his service was honorable so he may receive benefits from the Department of Veterans Affairs (VA).  His time in basic combat training (BCT), advanced individual training (AIT), and Vietnam was good time.  He received a combat certificate for his time in Vietnam, and he would like to be able to go to a VA Medical Center.  He did not get paid while he was in Vietnam, and he did not want to return to Vietnam without pay.  He was age 17 when he went to Vietnam.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Vietnam Combat Certificate.

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 was born on 8 September 1949.  On 30 November 1966, he enlisted in the Regular Army for a period of 3 years.  He was age 17 when he enlisted and he enlisted with the consent of his parents.  He successfully completed BCT and AIT, and he was awarded military occupational specialty 12A (Pioneer).  

3.  His record shows he was convicted by a special court-martial of being absent without leave (AWOL) from 6 to 13 May 1967.  

4.  On 3 June 1967, a bar to reenlistment was imposed on the applicant.  His commander stated the reasons for recommending a bar to reenlistment were the applicant's special court-martial for being AWOL in May 1967; his lack of interest in the Army, his personal appearance, and his failure to improve himself or to meet the standards of the company and battalion in spite of persistent counseling and guidance by his immediate supervisors.  

5.  His record shows he was convicted by a special court-martial a second time for being AWOL during the period 17 August to 16 September 1967.  

6.  On 21 December 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being AWOL from 
13 to 21 December 1967.

7.  His DA Form 20 (Enlisted Qualification Record) shows in item 31 (Foreign Service) he was credited with service in Vietnam from 22 December 1967 to 
9 November 1968.  

8.  On 9 July 1968, he requested a 6-month extension of his tour in Vietnam and that he be granted a 30-day special leave to Missoula, MT, in return for his extension.  His company commander recommended approval and noted the applicant's conduct and efficiency were "excellent."  The applicant's request was approved.

9.  Item 38 (Record of Assignments) of his DA Form 20 shows he was in an AWOL status on 10 November 1968 and he was dropped from the rolls of his unit in Vietnam on 10 December 1968.

10.  His record shows he was convicted by a special court-martial a third time for being AWOL from 10 November 1968 to 1 February 1969.  

11.  In a Certificate, dated 14 April 1969, an Army Psychiatrist reported he had examined the applicant and diagnosed him with passive-dependent personality, severe.  

	a.  The psychiatrist noted the applicant's history of marked social inadaptability during his service.  He found the applicant's condition to be part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in the military.  He noted the applicant used poor judgment, was not committed to productive goals, and he was unmotivated.

	b.  The psychiatrist found no evidence of mental disease, defect, or derangement sufficient to warrant medical disposition.  He found the applicant to be mentally responsible both to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board and other legal proceedings.  

	c.  The applicant was psychiatrically cleared for separation from the service under the provisions of the appropriate administrative regulation.  

12.  In a Certificate, dated 22 April 1969, a Stockade Chaplain stated he found the applicant to be lacking in moral responsibility, to be immature, and to use poor judgment.  He recommended the applicant be separated from the service under the provisions of the appropriate administrative regulation.  

13.  On 28 April 1969, the applicant's commander advised the applicant that he had initiated proceedings to discharge him from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The applicant's commander informed the applicant the basis for the proposed discharge action was the applicant's established pattern of shirking by being AWOL.  

14.  On a date not shown in the available record, the applicant was advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.

15.  After consulting with counsel, he waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He elected not to submit statements in his own behalf and he waived representation by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further acknowledged he understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

16.  On 28 April 1969, the applicant's commander recommended the applicant's discharge under the provisions of Army Regulation 635-212, for unfitness, based on the above misconduct.  His commander stated there were no special circumstances warranting a general or honorable discharge.

17.  On 7 May 1969, the separation authority approved his discharge as recommended and directed the issuance of an Undesirable Discharge Certificate.  On 14 May 1969, he was discharged as directed with an Undesirable Discharge Certificate.  His DD Form 214 shows he had 286 days of lost time.

18.  On 19 November 1971, The Adjutant General informed the applicant the Army Discharge Review Board had determined he was properly discharged and had denied his request for a change in the type and nature of his discharge.

19.  His pay records are not available for review.

20.  The applicant provides a Vietnam Combat Certificate stating he faithfully served his country with a subordinate unit of the 1st Cavalry Division (Airmobile) during the period December 1967 to July 1968.

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

22.  Army Regulation 635-200 (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 (emphasis added), 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 evidence of record does not support the applicant's request for an upgrade of his undesirable discharge.

2.  The ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for VA benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  He was convicted by special court-martial on three occasions for being AWOL, and he received NJP for being AWOL on one occasion.  Although the record shows he served successfully in Vietnam for several months, this period of successful service is overshadowed by his repeated misconduct.  

4.  His record further shows that shortly after his request to extend his service in Vietnam he went AWOL.  It appears he chose not to return to duty from the special leave he was granted in return for extending his tour.  There is no documentary evidence showing he was not paid while serving in Vietnam.  Even if the Army had failed to pay him during his service in Vietnam, this would not have excused his unauthorized absence.  

5.  Clearly, his commander was justified in recommending that he be discharged for unfitness due to an established pattern of shirking.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

6.  Records show the applicant was only age 17 when he enlisted.  He was 18 years and 3 months when he went to Vietnam.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.


7.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge or an honorable 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)                                         AR20130002373



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ABCMR Record of Proceedings (cont)                                         AR20130002373



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