IN THE CASE OF: 

		BOARD DATE:	    25 March 2014

		DOCKET NUMBER:  AR20130013454 


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 undesirable discharge to an honorable discharge.

2.  The applicant states the Army should have issued him an honorable discharge for the period “29” October 1966 to 22 June 1971 and the less than honorable discharge should have been for the period ending 24 October 1966.  He served two tours in Vietnam and was advised that he would be sent to Vietnam for a third time.  Due to his mental state, combat exposure, and fear for his life, his character of conduct changed.  He has attempted to become a good citizen, advanced his education, married, and held long-term employment.  However, he is now experiencing mental health issues and post-traumatic stress disorder due to his combat experiences and has sought counseling to deal with the problem.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two third-party letters of support.

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 on 18 August 1965 for a period of 4 years and assignment to Europe.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training as a cook at Fort Knox, Kentucky, before being transferred to Germany on 29 December 1965 for assignment to an artillery battery as a cook.

3.  On 24 October 1966, he was honorably discharged for the purpose of immediate reenlistment.  He completed 1 year, 2 months, and 7 days of active service during this period.

4.  On 25 October 1966, he reenlisted for a period of 6 years.  He departed Germany for assignment to Vietnam on 24 April 1967.  He arrived in Vietnam on 29 May 1967 and was assigned as a cook in an infantry company.

5.  He departed Vietnam on 25 May 1968 for assignment to Fort Knox.  On 17 September and 31 December 1968, nonjudicial punishment was imposed against him for failing to go to his place of duty.  On 20 December 1968, he was convicted by a summary court-martial of being absent without leave (AWOL) from 3 December to 16 December 1968.

6.  He again departed for Vietnam on 22 January 1969 and arrived in Vietnam on 3 March 1969.  He was assigned as a cook in an engineer company.  On 12 August 1969, he was assigned as a heavy truck driver.  He departed Vietnam on 1 March 1970 for assignment to Fort Knox as a truck driver.

7.  On 24 May 1971, he was convicted by a special court-martial of being AWOL from 16 to 17 September, 28 September to 1 October, 8 October to 2 November 1970, 7 November 1970 to 13 January 1971, 19 January to 18 February 1971, and 28 February to 3 March 1971.

8.  Meanwhile, the applicant's commander notified him that he was initiating action to discharge him from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) based on his frequent involvement in incidents of a discreditable nature with military authorities.  He indicated that each time after the applicant returned from a period of AWOL he requested to be discharged.

9.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

10.  On 15 June 1971, the appropriate authority (a major general) approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for unfitness.  He completed 4 years, 1 month, and 29 days of active service during this period and had 181 days of lost time due to AWOL and confinement.

12.  On 22 April 1982, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and stated he received the discharge he deserved for his actions at that time when he was young and dumb.  He also stated he had changed and had left drugs alone.  He admitted he made a mistake by being AWOL and had paid for it for 10 years.

13.  After reviewing the available evidence, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge on 3 November 1982.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of 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, 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to his repeated acts of misconduct and his undistinguished record of service.

4.  Accordingly, his overall record of service did not rise to even the level of a general discharge under honorable conditions when considering his repeated acts of misconduct during the period in question.

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)                                         AR20130013454



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ABCMR Record of Proceedings (cont)                                         AR20130013454



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