IN THE CASE OF:	  

		BOARD DATE:  31 December 2013

		DOCKET NUMBER:  AR20130007498


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states:

	a.  His Army service from 1963 to 1965 was very honorable.  He believes his life would have gone in a different direction if the military had given him some mental health treatment when he returned from Vietnam.

	b.  His father died when he was 6 years old and he worked on a dairy farm from the time he was 13 years old to support his mother.  He wasn't able to get much education; he dropped out of school in the 7th grade.  He volunteered to be drafted into military service when he turned 18 years old.  He was promoted to the rank/grade of sergeant/E-5 in the first 2 years he was in the Army.  He liked the Army and was proud of his uniform.  He had no education to get a good job when he was released from active duty so he enlisted in the Regular Army.

	c.  The first time he got into trouble was when he went over the limits of a pass.  He went home because his mother was sick and he was worried about her.  His mother told him to return to duty as soon as possible.  When he returned to Fort Benning he was court-martialed, reduced in rank/grade to private/E-1, and sentenced to 6 months in the stockade which he thought was pretty harsh.

	d.  He was released from the stockade because he volunteered to go to Vietnam with the company as an M-60 machine gunner.  Things went well during the first few months in Vietnam.  He was involved in numerous combat operations.  At Landing Zone X-ray he saw many deceased enemy and American Soldiers, body parts, and blood-covered ground.  What he saw will remain with him for the rest of his life.  One artillery round fell short and killed the Soldier in the foxhole next to him.  This left him in a state of shock and mentally stressed.  He lost a lot of friends in Vietnam.

	e.  When he returned to the United States, the American people were unfriendly toward Vietnam veterans.  His mother and family told him he needed mental help because he was not the same person he was before going to Vietnam.  He drank alcohol from the time he woke up in the morning until he passed out at night.  He attempted to commit suicide by overdosing on sleeping pills, but his mother found him and had him taken to a hospital.

	f.  Going to prison probably saved his life.  He has no bad feelings toward the Army or his country.  He has made a good life for himself.  He met his wife in 1968 and she helped him get back to a normal life.  They have been married for 44 years; they have three children and seven grandchildren.  He worked for a good company for 30 years; he still works part time.  His oldest son, who was disabled all of his life, was murdered last year and the Department of Veterans Affairs allowed him to bury his son in a National Cemetery.

3.  The applicant provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* page 3 of his DA Form 20 (Enlisted Qualification Record)

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 18 March 1963.  He completed training and was awarded military occupational specialty 111 (Light Weapons Infantryman).  He was honorably released from active duty on 6 March 1965.  He enlisted in the Regular Army on 12 March 1965 in the rank/grade of sergeant/E-5.

3.  Item 31 (Foreign Service) of his DA Form 20 shows he served in Vietnam from 20 February 1964 through 17 February 1965 and from 16 August 1965 through 15 August 1966.

4.  A DD Form 493 (Extract of Military Records of Previous Convictions) shows he was convicted by a special court-martial of being absent without leave (AWOL) from on or about 6 July 1965 to on or about 24 July 1965.

5.  Headquarters, 2nd Battalion, 5th Cavalry, 1st Cavalry Division (Airmobile), Special Court-Martial Order Number 12, dated 9 June 1966, shows the applicant was tried and found guilty of leaving his place of duty without proper authority and disobeying a lawful order on or about 27 May 1966.

6.  Records show the applicant was AWOL on 30 August 1966.

7.  On 1 February 1967 while AWOL, the applicant and another individual were arrested and confined by civil authorities in Jacksonville, FL, for breaking and entering with the intent to commit a felony, to wit:  grand larceny.

8.  Criminal Court Records of Duval County, FL, dated 20 February 1967, show the applicant and another individual were charged with breaking and entering with the intent to commit a felony and grand larceny for an incident that occurred on 23 January 1967.

9.  On 5 April 1967, the applicant appeared in court, pled guilty, and was sentenced to hard labor at the state prison for 2 1/2 years.

10.  On 17 August 1967, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for his conviction by a civil court.

11.  On 14 September 1967, the applicant acknowledged receipt of the proposed separation action while in civilian custody.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He requested a personal appearance before a board of officers, appointment of military counsel to represent him in his absence, and elected not to submit statements in his own behalf.

12.  On 21 March 1968, the applicant signed a statement indicating he did not intend to appeal his conviction.

13.  On 10 April 1968 after consulting with counsel, the applicant signed a Statement of Counseling waiving his rights.  He elected not to submit statements in his own behalf. 

14.  On 1 May 1968, the separation authority (a major general) approved the applicant's discharge.  He directed the issuance of an Undesirable Discharge Certificate and the applicant's reduction to pay grade E-1.

15.  He was discharged accordingly in pay grade E-1 on 7 May 1968 under the provisions of Army Regulation 635-206.  He completed 1 year, 4 months, and 4 days of net active service during this period and had 652 days of lost time.  His service for this period was characterized as under other than honorable conditions.

16.  The applicant provides a self-authored statement describing his youth and military experiences and copies of his DD Forms 214 and an extract of his DA Form 20 showing his record of assignments.

17.  A review of the available medical records fails to show the applicant had any mental disorders.

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

19.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

20.  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's records show he was convicted by a civil court of grand larceny and sentenced to 2 1/2 years in civil confinement.  Accordingly, his chain of command initiated separation action against him.

2.  Although the applicant claims he required mental health treatment, his records are void of any evidence of a mental disorder.

3.  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 during his second enlistment.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his second period of service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 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)                                         AR20130007498



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ABCMR Record of Proceedings (cont)                                         AR20130007498



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