IN THE CASE OF:
BOARD DATE: 8 October 2013
DOCKET NUMBER: AR20130003161
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 an honorable discharge.
2. He states:
* he had an honorable discharge offered to him
* he was sick, got a disease in Vietnam, was worried, and was mentally exhausted
* he made an error by not signing the honorable discharge
3. He provides no additional documents.
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 inducted into the Army of the United States on 11 February 1971. He served in Vietnam from 8 September 1971 to 8 May 1972. His service record contains a Standard Form 600 (Chronological Record of Medical Care) which indicates he was medically evaluated on 7 December 1971 at a battalion aid station. This medical document indicates he had yellow eyes, felt weak, and had dark urine (urinalysis was positive) with a diagnosis of hepatitis.
3. While in Vietnam, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for sleeping on guard duty.
4. His DA Form 20 (Enlisted Qualification Record) indicates he was absent without leave (AWOL) from 8 to 26 June 1972. His service record is void of evidence which indicates he received nonjudicial punishment for this period of AWOL.
5. On 28 December 1972, he was convicted in the District Court of Bell County, 27th Judicial District of Texas for the offense of robbery by firearms and was sentenced to five years in confinement in the Texas Department of Corrections.
6. On an unknown date, the unit commander notified the applicant of his recommendation for his discharge under the provisions of Army Regulation
635-206 (Personnel Separations Discharge Misconduct) with a general discharge. He was advised of his rights. His chain of command recommended approval with an undesirable discharge.
7. He consulted with legal counsel, requested consideration and personal appearance of his case by a board of officers, and he submitted statements in his own behalf. He stated he didn't intend to appeal his conviction of robbery by firearms in the District Court of Bell County, State of Texas.
8. He underwent a separation physical examination on 20 November 1973 and was qualified for separation with a physical profile of 111111. He completed a Standard Form 93 (Report of Medical History) indicating he was a patient in the 24th Evacuation Hospital in Vietnam for hepatitis.
9. His service record contains a DA Form 2496 (Disposition Form), dated 30 December 1973, which indicates a complete review of his physical and mental examination failed to reveal any defects which would have contributed to his misconduct.
10. A board of officers convened on 22 January 1974 and recommended the applicant be discharged from the service with issuance of an undesirable discharge.
11. The separation authority approved the discharge under the provisions of Army Regulation 635-206, paragraph 33a by reason of civil conviction with issuance of an undesirable discharge.
12. He was discharged on 22 March 1974. He completed 1 year, 7 months, and 7 days creditable active service with approximately 551 days of lost time.
13. His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.
14. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). This regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action taken against them which is tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.
15. 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.
16. 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 applicant's service record is void of evidence which indicates he was offered an honorable discharge.
2. Although a medical document indicates he was diagnosed with hepatitis while in Vietnam, his service record is void of evidence that indicates this medical condition may have contributed to his misconduct.
3. The applicant was found guilty by the District Court of Bell County, 27th Judicial District of Texas on 28 December 1972 for robbery by firearms and was sentenced to 5 years in confinement.
4. His service record shows he received an Article 15 for sleeping on guard duty.
5. It appears the chain of command determined the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as undesirable.
6. The evidence of record does not show the actions taken in this case were in error or unjust. Therefore, there is no basis for upgrading the applicants discharge to either honorable or general.
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.
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