IN THE CASE OF:	  

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130018259 


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 conditions other than honorable so he may receive benefits through the Department of Veterans Affairs.

2.  He states that since he served his time for actions he committed in Vietnam, he has been a model citizen with no trouble with law enforcement.  Since coming home from North Carolina, he has owned his own business and supports the community.  He has never been married, but he has had custody of his daughter since 1976 and raised her on his own.  From the time that he entered the Army in January 1969, he had specialty training and had climbed from the rank/pay grade of private (PV1)/E-1 to specialist four (SP4)/E-4 by February 1970.  He was a model Soldier until 6 months after he arrived in Vietnam in the middle of the war. 
His daughter is the reason he would like his discharge upgraded.  He would like her to be able to lay him to rest in a National Cemetery with proper honors.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and 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 enlisted in the Regular Army on 16 January 1969.  He served in the Republic of Vietnam from 15 January 1970 to 25 January 1971.  The highest rank/grade he attained while serving on active duty was SP4/E-4.  However, he held the rank/grade of PV1/E-1 at the time of his discharge.

3.  His military service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* unlawfully entering a government building on 20 September 1969
* operating a vehicle in a careless manner by following too closely, thereby causing an accident on 1 November 1970
* violating a lawful general regulation by being in an unauthorized location on 11 November 1970
* wrongfully possessing 2.4 grams (more or less) of marijuana on 11 November 1970

4.  On 18 March 1971, the applicant was arrested and confined by civil authorities for sale and possession of heroin.

5.  On 25 April 1971, he was released to military control pending his hearing in District Court.

6.  On 18 May 1971, the applicant was convicted of sale and possession of heroin and sentenced to 5 years of confinement at the Polk Youth Center, Raleigh, NC.

7.  On 24 May 1971, the applicant's unit commander advised him that he intended to recommend him for discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absence without Leave, Desertion)) by reason of a conviction and sentence by a civil court.  The commander told the applicant that he may receive an Undesirable Discharge Certificate as a result of this action and advised him of his rights.  On 7 June 1971, the applicant acknowledged receipt of this notification and indicated that he desired to waive his rights to have legal representation, submit statements in his own behalf, or appeal his conviction.

8.  On 4 June 1971, the applicant's unit commander recommended his discharge from the service under the provisions of Army Regulation 635-206 and the issuance of an undesirable discharge.  The commander cited the applicant's aforementioned punishments under Article 15 and his civil conviction for possession of heroin and the sale of heroin resulting in a sentence of confinement of not less than 5 years.  The applicant's intermediate level commanders concurred with the unit commander's recommendation.

9.  On 17 July 1971, the separation authority, a brigadier general, approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate.

10.  On 29 July 1971, the applicant was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-206 due to his conviction by a civil court during the current period of active service.  His service was characterized as under conditions other than honorable.

11.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  This regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action had been taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

14.  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 contention that his undesirable discharge should be upgraded to a general discharge was carefully considered and determined to lack merit.

2.  The applicant's civilian and military records reveal a disciplinary history that includes numerous offenses, to include punishment under Article 15 and a civil court conviction.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  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.

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 service unsatisfactory.  Therefore, there is no basis for granting the applicant's requested relief.

5.  The ABCMR does not amend and/or correct military records solely for the purpose of making an applicant eligible for veterans' benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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)                                         AR20130018259



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ABCMR Record of Proceedings (cont)                                         AR20130018259



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