BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130008027 


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 an honorable discharge.

2.  The applicant states:

* he served with honor
* in Vietnam, he was awarded the Bronze Star Medal, the Good Conduct Medal, and two campaign medals
* he needs an upgrade for medical Department of Veterans Affairs (VA) services
* he was not drafted, he volunteered to serve his country and he fought and was wounded while he was in Vietnam
* he fought, slept, and breathed Agent Orange for 8 months
* Agent Orange is getting the best of him and he needs his discharge upgraded to honorable to help him live what life he has left

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 7 December 1967
* DD Form 214, dated 24 May 1977
* Notification of awards shipment
* Veteran Identification Card
* Report of Medical Examination, dated 24 May 1977
* Two DePuy Medical Cards

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 enlisted in the Regular Army (RA) on 28 August 1965.  He completed training as a radio teletype operator.  He arrived in Vietnam on 
28 March 1966.  He departed Vietnam en-route to the United States on 
24 October 1966.

3.  On 7 December 1967, the applicant was honorably discharged for the convenience of the government.  The DD Form 214 he received shows he completed 2 years, 3 months, and 10 days of total active service.

4.  The applicant reenlisted in the RA on 8 December 1967.  He arrived in Japan on 27 January 1968.

5.  On 19 February 1971, the applicant was convicted by Japanese civilian authorities of murder and of abandonment of the corpse.  He was sentenced to confinement at hard labor for 12 years.  He was also ordered to pay court costs.  He began serving his sentence on 29 November 1971.

6.  On 21 April 1972, the applicant was notified that a board of officers was convening to determine whether he should be discharged from the service under the provisions of Army Regulation 635-206 (Personnel Separations –                   Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)), due to misconduct.  The board convened on 8 May 1972 and recommended that he be separated from the military service with the issuance of an Undesirable Discharge Certificate.

7.  On 19 July 1972, the appropriate separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.  The separation authority also directed that the applicant be returned to the Continental United States prior to his discharge from the service.

8.  On 24 May 1977, the applicant was discharged under the provisions of Army Regulation 635-206, for misconduct.  He received an Under Other Than Honorable Conditions Discharge Certificate.

9.  A review of the available records does not show that the applicant was ever awarded the Bronze Star Medal.  His records also fail to show that he was ever wounded as a result of hostile action by enemy forces while he was in Vietnam.

10.  On 8 June 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-206, in effect at that time, 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 n 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.  At the time of the applicant's separation a discharge under other than honorable conditions was appropriate.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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 states 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 contentions have been noted.  His supporting evidence has been considered.

2.  His records show he did serve in Vietnam and he did serve honorably during his initial period of enlistment.  He received a DD Form 214 to show his period of honorable service.

3.  The applicant reenlisted in the RA on 8 December 1967.  He was convicted by Japanese civilian authorities of murder and of abandonment of the corpse.  He was sentenced to 12 years confinement at hard labor and when he completed his sentence he was properly discharged under other than honorable conditions.

4.  The Army does not have nor has it ever had a policy that provides for the upgrade of a discharge for VA benefits.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  There is no evidence of record and the applicant did not provide any evidence that suggests there was any error or injustice related to his separation processing.

5.  The discharge under other than honorable conditions appropriately reflects his overall record of service.  Considering the nature of his offenses, the type of discharge he received was not too harsh.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20130008027



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ABCMR Record of Proceedings (cont)                                         AR20130008027



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