IN THE CASE OF:	  

		BOARD DATE:  31 December 2013

		DOCKET NUMBER:  AR20130007115 


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 discharge under honorable conditions be upgraded to an honorable discharge
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 2 February 1973 be corrected to show he was awarded the Purple Heart and the Vietnam Service Medal with three bronze service stars 

2.  The applicant makes no statement in support of his request for an upgrade of his discharge.

3.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) Docket Number AR20040011410, dated 8 September 2005
* a letter, dated 16 May 2006, from the Army Review Boards Agency (ARBA), St. Louis, MO 
* U.S. Army Human Resources Command (HRC) Permanent Order 011-5, dated 11 January 2006
* Purple Heart Certificate, dated 26 May 2006


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 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.  ABCMR Docket Number AR20040011410, dated 8 September 2005, corrected the applicant's military records to show he was awarded the Purple Heart and the Vietnam Service Medal with three bronze service stars.  As a result, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 26 May 2006, was issued by ARBA, St. Louis adding the Purple Heart and the Vietnam Service Medal with three bronze service stars to his DD Form 214 with an effective date of 2 February 1973.  Therefore, these issues will not be discussed further in these Proceedings.  A copy of the DD Form 215 will be provided to the applicant.

3.  On 8 April 1971, he was inducted into the Army of the United States.  He served in the Republic of Vietnam from 24 September 1971 to 28 April 1972.  He was assigned to:

* Company D, 52nd Infantry from 24 September to 4 December 1971
* Company C, 52nd Infantry from 5 December 1971 to 26 March 1972
* 19th Supply and Service Company from 27 March to 28 April 1972

4.  He accepted nonjudicial punishment (NJP) on:

* 21 January 1972 for failing to go at the time prescribed to his appointed place of duty, to wit: guard formation and guard post
* 1 March 1972 for being derelict in the performance of his duty in that he failed to visually watch his assigned sector
* 10 March 1972 for failing to report to his assigned station and being absent without leave (AWOL) from 7-9 March 1972
* 27 November 1972 for failing to go at the time prescribed to his appointed place of duty

5.  On 16 January 1973, the applicant received a mental evaluation from a major, Medical Corps, a psychiatrist.  The examiner found:

* the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings
* no disqualifying mental defects sufficient to warrant disposition through medical channels
* no psychiatric diagnosis
* that rehabilitative efforts would be non-productive
* the applicant was psychiatrically cleared for administrative action

6.  On 23 January 1973, the applicant was tried before a summary court-martial (SCM).  He pled not guilty and was found guilty of wrongful possession of some amount of marijuana.

7.  On 24 January 1973, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability due to apathy.

8.  The commander advised the applicant of his right to:

* consult with consulting counsel
* have his case considered by a board of officers
* appear in person before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

9.  The applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-200, chapter 13, for unsuitability.  He did not submit any statement in his own behalf and he waived:

* consideration by a board of officers
* a personal appearance
* representation by counsel and stated that he was not submitting statements in his own behalf

10.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

11.  On 24 January 1973, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, chapter 13.  Discharge was recommended because of the applicant's apathy toward the military and his inability to sufficiently participate in further military training and become a satisfactory Soldier.

12.  The appropriate authority waived further rehabilitative requirements, approved the recommendation for discharge under the provisions of paragraph 13-5b(3) of Army Regulation 635-200, and directed that the applicant be furnished a General Discharge Certificate.

13.  On 2 February 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to apathy.  He had completed 
1 year, 9 months and 20 days of active service that was characterized as under honorable conditions.  

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 13-5b(3) provided for discharge of individuals for unsuitability.  Among the reasons for unsuitability were apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  Separation action was taken when in the commander's judgment the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  His entire record of service was reviewed.  His tour of duty in the Republic of Vietnam and the fact that he was wounded in combat was noted.  However, his service was not sufficiently meritorious as to make a characterization of his service as under honorable conditions inappropriate.

3.  He accepted NJP on four occasions, three of which occurred in a combat zone, and he was convicted by a summary court-martial for wrongful possession of some amount of marijuana.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to 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)                                         AR20130007115



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ABCMR Record of Proceedings (cont)                                         AR20130007115



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