IN THE CASE OF:	 

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130018038 


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 (UD) to an honorable discharge.

2.  The applicant states he was unjustly discharged because of post-traumatic stress disorder (PTSD).  He wants to be eligible for health care through the Department of Veterans Affairs (VA).

3.  The applicant provides no additional evidence.

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, in pay grade E-1, on 7 July 1965, for 4 years.  He served as a light weapons infantryman in Vietnam from 
26 September 1966 through 7 September 1967.

3.  He was promoted to pay grade E-5 on 3 June 1967.

4.  On 16 April 1968, he was issued a Letter of Reprimand for his release from the Chemical, Biological, Radiological Non-commissioned Officers Course for failing to attain satisfactory grades.

5.  On 4 November 1968, the applicant was convicted by the District Court, Fourth Judicial District, County of El Paso, State of Colorado, for the civilian offense of simple robbery.  The court sentenced him to confinement. 

6.  On 10 December 1968, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).  The company commander stated the applicant:

* was convicted of simple robbery by the District Court, Country of El Paso, State of Colorado, on 4 November 1968, and he was confined at the Buena Vista Reformatory for an indefinite period of time
* went absent without leave (AWOL) on 17 June 1968 and he was also AWOL on 23 June 1968
* was arrested and confined in a civilian jail on 29 June 1968
* his conduct and efficiency were unsatisfactory 

7.  On 20 December 1968, the applicant was notified by letter of initiation of separation action under the provisions of Army Regulation 635-206, paragraph 22, for conviction by a civil court, with a UD.  He was advised of his rights.

8.  His service record contains an acknowledgement statement advising him of his right to request/waive consideration of his case by a board of officers, request/waiver his right to appear before a board of officers, submit/decline submission of statement on his own behalf, and a response regarding his intent to or not to appeal his civilian conviction.  However, there is no indication he acknowledged or signed this statement. 

9.  On 30 January 1969, the applicant's battalion commander recommended approval of the applicant's discharge and the issuance of an Undesirable Discharge Certificate.

10.  On 6 February 1969, the Division Staff Judge Advocate found the applicant's case to be legally sufficient to support discharge pursuant to Army Regulation 635-206.  He noted the applicant had been notified of his rights and he did not make any response within the prescribed 30 day timeframe.

11.  On 18 February 1969, the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

12.  He was discharged accordingly on 26 February 1969.  He was credited with completing 2 years, 11 months, and 5 days of net active service and he had 
250 days of lost time.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate. 

13.  His medical records are not available for review with this case. 

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

15.  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 AWOL or desertion).  The regulation stated an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted a UD was considered appropriate.

16.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

   a.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for discharge by reason of civil conviction.  His company commander noted that he went AWOL on 17 June 1968 and on 23 June 1968.  He was also arrested and convicted in a civilian court for robbery.  His conduct and efficiency were unsatisfactory.  He was notified in writing of the proposed separation action and advised of his rights; however, he did not respond.

2.  It is apparent that his chain of command ensured that the proper documents were prepared and signed by the proper authorities to ensure that he was discharged according to regulatory authority.  The separation authority approved his discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.  He was discharged accordingly on 26 February 1969.

3.  His medical records are not available for review with this case.  There is no evidence of record and he provided none to show PTSD or any mental or medical conditions resulted in him being unable to distinguish right from wrong and adhere to the right.

4.  While the applicant is commended for his service in Vietnam, he did not provide sufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service between June 1968 and November 1968 below that meriting a general or a fully honorable discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.

6.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.





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)                                         AR20130018038



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ABCMR Record of Proceedings (cont)                                         AR20130018038



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