IN THE CASE OF:	  

		BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130006546 


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, in effect, an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states he believes he was lied to by the officer who interviewed him for the discharge.  He is now in need of medical assistance but he cannot receive the assistance because he was told there is no proof of his service in Vietnam.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 was inducted into the Army of the United States on 18 October 1967 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in Vietnam from on or about 22 May 1968 to on or about 27 October 1968.  He was assigned to Company A, 2nd Battalion, 39th Infantry, 9th Infantry Division. 

4.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Parachutist Badge. 

5.  On 5 September 1968, he was convicted by a summary court-martial of one specification of disobeying a lawful order to go on a combat mission and one specification of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to confinement at hard labor for 1 month, reduction to the lowest enlisted grade, and a forfeiture of $72.00 pay.  The convening authority approved his sentence on 6 September 1968.  

6.  On 8 October 1968, he was convicted by a special court-martial of one specification of absenting himself and remaining so absent in desertion from his unit from 7 to 15 September 1968 with intent to avoid combat operations and one specification of being absent without leave from 16 to 30 September 1968.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $46.00 pay per month for 6 months.  The convening authority approved his sentence on 9 October 1968.  

7.  On 22 November 1968, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) due to unfitness.  The commander cited the applicant's frequent incidents of a discreditable nature with military authorities and not responding to rehabilitative efforts to become a satisfactory Soldier. 

8.  On 25 November 1968, the applicant underwent a mental status evaluation after having been referred by his immediate commander to receive a psychiatric clearance.  The military psychiatrist concluded there was no evidence of a psychiatric disease to warrant disposition through medical channels.  He was able to distinguish right from wrong and adhere to the right.  His diagnosis was that of sociopathic personality.  He was not amenable to psychiatric treatment, counseling, or rehabilitative measures.  He was cleared for administrative actions deemed appropriate by his chain of command. 


9.  On 26 November 1968, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action 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 further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He also acknowledged 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 in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.

10.  On 1 December 1968, his immediate commander formally initiated separation action against him under the provisions of Army Regulation 635-212 by reason of unfitness.  The immediate commander stated the undesirable discharge was recommended because of the applicant's intentional shirking of his duties and behaving in such a manner that repeatedly subjected him to punitive action.  

11.  On 1 December 1968, the applicant's intermediate commander recommended approval of the applicant's discharge for unfitness and the issuance of an Undesirable Discharge Certificate.

12.  On 7 December 1968, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed that the applicant be furnished an Undesirable Discharge Certificate.  Accordingly, on 24 December 1968, the applicant was discharged from the Army.  The DD Form 214 he was issued confirms he completed a total of 1 year and 10 days of creditable active military service and he had 57 days of lost time.  It also shows he was awarded the Vietnam Service Medal.

13.  On 10 November 1980, the Army Discharge Review Board (ADRB) reviewed his discharge but determined he was properly and equitably discharged.  Accordingly, the ADRB denied his petition for an upgrade of his discharge.

14.  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.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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 that his undesirable discharge should be upgraded.

2.  The applicant’s records reveal a history of indiscipline and/or misconduct including two instances of court-martial, one of which was for going AWOL and refusing to go on combat operations.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with the applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's current health problems are regrettable and his present need for help is noted; however, the ABCMR does not correct records for the purpose of establishing entitlement to other programs or benefits.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable discharge.

5.  His award of the Vietnam Service Medal and this Record of Proceedings can verify his service in Vietnam.
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)                                         AR20130006546





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ABCMR Record of Proceedings (cont)                                         AR20130006546



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