IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130016064 


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 that he served his country honorably from 3 August 1966 to 23 May 1968.  After reenlisting he served in Vietnam from 1 January 1969 to 
6 January 1970.  He was reassigned to Germany and had a difficult time adjusting to regular Army life.  He went absent without leave (AWOL) after his request to return to Vietnam was denied.  He believes that if the military had helped him to readjust that he would not have gone AWOL and would have made the Army a career.

3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods 5 August 1966 through 23 May 1968 and 24 May 1968 through 25 February 1972.

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 record shows he enlisted in the Regular Army on 5 August 1966.  He served in Vietnam from 1 January 1969 – 6 January 1970.  He immediately reenlisted on 24 May 1968.  The highest rank/grade he attained while serving on active duty was specialist five (SP5)/E-5 [temporary].  At the time of separation he held the rank/grade of private (PV1)/E-1.

3.  His record reveals a disciplinary history that included a summary court-martial conviction in which he was charged with being AWOL.  Further, item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows the following periods of AWOL:

* 29 August-12 September 1971
* 13-15 January 1971
* 15-21 January 1971
* 1-11 February 1971
* 1-2 June 1971
* 27 December 1971-26 January 1972

4.  He underwent a separation physical in conjunction with his discharge processing.  A Report of Mental Status Evaluation, dated October 1971, shows that the applicant exhibited normal behavior.  The military physician diagnosed the applicant with situational anxiety and further noted the applicant:

* had no significant mental illness
* was mentally responsible
* was able to distinguish right from wrong
* was able to adhere to the right
* had the mental capacity to understand and participate in board proceedings
* met the retention standards prescribed in chapter 3, Army Regulation 
40-501 (Standards of Medical Fitness)

5.  On 8 November 1971, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation 635-212 for unfitness.  He was informed that the basis for the recommendation was his frequent incidents of a discreditable nature with military authorities.  His performance was characterized as intentional shirking of his duties.  He was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.  He waived all rights and did not submit statements on his behalf.

6.  On 3 January 1972, the separation authority directed the issuance of an Undesirable Discharge Certificate.  Accordingly, he was discharged on 
25 February 1972.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-212 for unfitness.  

7.  There is no evidence in his records that show he petitioned the Army Discharge Review Board for an upgrade of his discharge.

8.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Enlisted Separations) provides in:

	a.  Paragraph 3-7a, 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, 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 record shows that he honorably completed his initial term of service to include a tour in Vietnam.  However, his subsequent term of service reflects a record of misconduct that included over 60 days of lost time and a court-martial conviction for being AWOL.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  He is not entitled to a general or 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)                                         AR20130016064



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ABCMR Record of Proceedings (cont)                                         AR20130016064



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