IN THE CASE OF: 

		BOARD DATE:	  27 August 2014

		DOCKET NUMBER:  AR20130020855 


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.  He states:

	a.  He cannot remember why he got in trouble because it was so long ago, but two incidents do stand out.  

		(1) He was once pulled over with another Soldier.  They had some marijuana, and civilian authorities dealt with the matter.  

		(2) Later, he assisted a young Soldier who came to him crying and said he was going to commit suicide if he didn't get out of the Army.  The Soldier lived in Washington, and at the time the Army didn't have the mental health resources of the modern Army, so he made the mistake of taking the Soldier home (50 miles away).  He was young and didn't know how to help him.  He made a poor choice in taking the Soldier home and assisting the Soldier in going AWOL.  

	b.  He has no recollection of meeting with anyone from a legal office or an attorney.  He does not remember going before a separation board and does not remember anyone explaining to him his rights or options with regard to his discharge.  The only person he dealt with was the captain he worked for.  He simply worked past his expiration term of service (ETS) date and was then discharged.

	c.  He continues, describing his post-service life.  He was trained as an air-cooled engine mechanic and worked in that field for many years, to include operating his own foreign car repair business.  He later worked as a realtor and owned a painting business.  He and his wife are now resident managers of a condominium complex in Hawaii.  He has three adult children, two of whom he and his wife adopted when they were 3 and 4 years of age.  

	d.  He states his wife convinced him to try to get an upgrade of his discharge.  He asks the Board to consider his case based on his unblemished service in Vietnam.  He doesn't want anything from the U.S. Government; he just wants his pride back.  He did serve in Vietnam without incident, and now that he has grandchildren he wants them to be proud of him.

3.  He provides documents through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show in:

* block 13a (Character of Service) – "Honorable"
* block 13b (Type of Certificate Issued) – in effect, "DD Form 256A" (Honorable Discharge Certificate)
* block 11c (Reason and Authority) – "Secretarial Plenary"
* block 15 (Reenlistment (RE) Code) – "1"

2.  Counsel states the applicant was released from active duty without being advised of his rights.  He was also kept past his ETS date without filing of the proper paperwork.  His discharge should be upgraded because he was denied due process.  

	a.  Following a summary of the applicant's service, counsel briefly describes the basis for his trials by summary and special courts-martial.  

		(1) On 3 June 1966, he was tried by a summary court-martial for having been absent without leave (AWOL).  The reason he went AWOL was to assist a Soldier who was suicidal because he missed home.  The applicant decided to take the Soldier to the Soldier's hometown, which was a few hours away.  Today, a suicidal Soldier would have the resources and support to deal with such a problem, but at the time the Army was not set up that way.  The applicant was simply trying to prevent a suicide.  He may not have gone about it the right way, but his intentions were pure.  His unit must have agreed on some level because he was not separated after the summary court-martial.
		(2) On 11 December 1968, the sentence of a special court-martial was approved.  The basis for the trial was the applicant having been AWOL.  He was not discharged as a result of this court-martial, but rather allowed to stay on active duty past his ETS date.  He may not have been at his place of duty, but he maintained contact with his command, which knew of his whereabouts.  His record clearly states that from 14 October to 13 November 1968 he was in civilian confinement.  If his command knew where he was, he could not have been AWOL.  

	b.  The applicant received an under other than honorable conditions discharge.  He does not recall meeting a military attorney to be advised of his rights as they pertained to his characterization of service or his right to a separation board.  He likewise does not remember seeing the standard memorandum used to advise a Soldier of his or her rights associated with a contemplated separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The only person the applicant remembers speaking to about his discharge was his commander.  He does not recall anyone explaining to him that he was entitled to a separation board.  Based on this alone, his discharge should be upgraded.  

	c.  The applicant was extended past his ETS date.  The fact that he was AWOL did not relieve the Army of the requirement to file the necessary paperwork to extend him past his ETS date.  Counsel called a former senior defense counsel, the clerk of court at an Army installation, and a former appellate division attorney.  All agreed that some kind of paperwork would have had to be filed to extend the applicant past his ETS date.  No paperwork was found in his Official Military Personnel File (OMPF); therefore, his characterization of service should be upgraded based on his improper extension.

3.  Counsel notes that the applicant volunteered to serve in Vietnam and received a citation for his service there.  Since leaving active duty, he has led a rich and fulfilling life.  He is a loving husband and father, and two of his three children were adopted and saved from foster care after they had lived in 17 homes.  He received an award from the Regional Manager, Children's Service Division, for his hard work and care for youth.  He made some mistakes 50 years ago for which he takes responsibility.   

4.  Counsel provides documents identified in a list of exhibits.

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.  On 28 January 1966, the applicant enlisted in the Regular Army for a 3-year term of service.  A review of his record shows he performed duty in various administrative military occupational specialties.  

3.  On 28 May 1966, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order.  

4.  On 3 June 1966, Headquarters, 4th Brigade, Fort Ord, CA, issued Summary Court-Martial Order Number 62.  The order shows that, pursuant to his plea, he was found guilty of being AWOL from 2 to 9 May 1966.  His sentence included confinement at hard labor for 11 days.

5.  On 16 November 1966, he received NJP for willfully disobeying a lawful order.  

6.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 11 (Enlisted, Inducted, Reenlisted, Extended, and/or Ordered to Active Duty) – the expiration date of his enlistment was 17 March 1969, calculated as his ETS plus 49 days of time lost
* item 31 (Foreign Service), in part – he was credited with service in Vietnam from 16 March 1967 through 15 March 1968
* item 33 (Appointments and Reductions) – the highest grade he held was specialist five (SP5)/E-5
* item 38 (Record of Assignments) – he received "excellent" conduct and efficiency ratings through 14 August 1968, after which he received "unsatisfactory" ratings
* item 42 (Remarks) – he was arrested by civil authorities on 14 October 1968, confined and convicted (of an offense not shown), and sentenced to 6 months in jail (suspended)
* item 44 (Time Lost Under Section 972, Title 10, U.S. Code (10 USC 972) and Subsequent to Normal Date ETS), he was – 

* AWOL from 2 to 8 May 1966 (7 days)
* confined from 3 to 13 June 1966 (11 days)
* confined by civil authorities from 14 October to 13 November 1968 (31 days)

7.  On 11 December 1968, the 1st Basic Combat Training Brigade, U.S. Army Training Command, Infantry and Fort Lewis, Fort Lewis, WA, issued Special Court-Martial Order Number 268.  The order shows that, pursuant to his plea, the applicant was found guilty of being AWOL from 14 October to 14 November 1968.  He was sentenced to forfeit $30.00 per month for 3 months and to be reduced to private first class/E-3.  

8.  On 17 February 1969, The Adjutant General notified the Commanding General, Fort Lewis, WA, that the applicant had been arrested by civil authorities.  A Federal Bureau of Investigation record attached to the notification memorandum shows the applicant was arrested for a narcotics violation on 12 January 1969.  The available records do not show the disposition of this matter.  

9.  The complete facts and circumstances of his discharge are not contained in the available records.  However, his records include a DD Form 214 bearing his signature showing he was discharged on 19 February 1969 as a private/E-1.  His DD Form 214 shows in:

* block 11c – "AR 635-212 SPN [Separation Program Number] 28B"
* block 13a – "UNDER CONDITIONS OTHER THAN HONORABLE"
* block 13b –"DD Form 258a" (Undesirable Discharge Certificate)
* block 15 – "RE-4"
* block 22b (Total Active Service) – 2 years, 11 months, and 3 days
* block 30 (Remarks), in part – he had 49 days of time lost under 10 USC 972

10.  His OMPF contains no record of acts of valor, significant achievement, or service warranting special recognition.  

11.  The record does not show he applied to the Army Discharge Review Board for a change in his character of service within its 15-year statute of limitations.

12.  Counsel provides several documents in support of the applicant's request, including the following:

	a.  a DD Form 258A (Undesirable Discharge Certificate) showing he was discharged on 19 February 1969 as undesirable;
	b.  an Army Commendation Medal (ARCOM) Certificate, dated 20 March 1968, and an ARCOM Citation indicating the applicant was awarded the ARCOM for meritorious service in Vietnam during the period 16 March 1967 to 15 March 1968; 

	c.  the applicant's Oklahoma Military Academy high school diploma; and 

	d.  a document from the Oklahoma Military Academy stating the applicant was authorized to wear the merit ribbon for good conduct during his first year in the academy.

13.  Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, stated:

	a.  Under the provisions of 10 USC 972, every individual who fell into any one of the following categories was liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounted to the term for which he was enlisted or inducted – 

* deserted
* was absent from organization, station, or duty for more than 1 day without proper authority
* was confined for more than 1 day while awaiting trial and disposition of case, and whose conviction had become final
* was confined for more than 1 day under a sentence that had become final
* was unable for more than 1 day, as determined by competent authority, to perform duties because of intemperate use of drugs or alcoholic liquor, or because of injury resulting from misconduct

	b.  Adjustments to the ETS due to time lost were to be recorded in item 11 of the DA Form 20.  

	c.  The regulation further provided that, if a Soldier was confined by civil authorities while in an AWOL status, time in civil confinement would be included in the entry covering the period of AWOL in item 44 of the DA Form 20.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  

	a.  Chapter 2 contained guidance for preparation of the DD Form 214.  It stated RE code "4" applied to individuals who were not eligible for reenlistment.  All DD Forms 214 so coded were required to cite the appropriate authority for separation.

	b.  Appendix A (SPN and Authority Governing Separations) listed the separation authorities with their associated SPNs, narrative reasons for separation, and reenlistment eligibility.  The appendix shows SPN 28B applied to individuals discharged under the provisions of Army Regulation 635-212 for unfitness based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  Individuals discharged under this authority were not eligible to reenlist.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  

	a.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure 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.

	b.  Section IV (Procedure) stated the unit commander of the individual would recommend initiation of action under this regulation, disposition through medical channels, or disciplinary action.  The unit commander could afford the individual the opportunity to waive his right of a hearing before a board of officers.  In such a case, the commander was to:

		(1) advise the individual in writing of the basis for the proposed discharge action and advise him that he had the right to:

* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive the above rights in writing

		(2) give the enlisted member reasonable time (not less than 48 hours) to consider waiver of board proceedings and give the enlisted member the opportunity to consult with counsel prior to waiving his rights; and 
		(3) obtain a signed statement from the individual indicating that he had been advised of the basis for the contemplated separation and its effect and of the rights listed in (1) above.  The statement was to include a request or a waiver by the individual of each right.  Counsel was to sign the statement and the statement was to be included in the unit commander's report forwarded to the separation authority.

	c.  Section IV further stated that, on receiving a recommendation for separation for unfitness, the commander exercising general court-martial jurisdiction could:

		(1) disapprove the recommendation and direct reassignment of the individual to another organization; or 

		(2) disapprove the recommendation and return the case to the originator for disposition by other means; or

		(3) disapprove the recommendation relating to unfitness, and convene a board of officers, or refer the case to the commander exercising special court-martial jurisdiction to convene a board of officers, to determine whether the individual should be separated for unsuitability; or

		(4) convene a board of officers to determine whether the individual should be separated for unfitness; or

		(5) when the board hearing had been properly and effectively waived, direct separation of the individual for unfitness or unsuitability; or

		(6) when the board hearing had been properly and effectively waived, approve separation of the individual for unfitness or unsuitability and suspend execution of the separation; or

		(7) direct that the case be processed through medical channels, if appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. 

	a.  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.

	b.  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 evidence of record does not support upgrading the applicant's discharge or making any of the changes to his DD Form 214 requested by counsel.  

2.  The complete facts and circumstances of the applicant's discharge are not available; however, his record shows he received NJP on two occasions, was convicted by two courts-martial of being AWOL pursuant to his guilty pleas, and was arrested and confined by civil authorities.  This evidence supports the decision to discharge him for unfitness based on his frequent incidents of a discreditable nature with civil or military authorities.  The evidence also supports the characterization of service he received.  

3.  The entries in blocks 11c, 13a, 13b, and 15 of his DD Form 214 properly reflect the data associated with a discharge for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  

4.  In the absence of documentary evidence showing procedural errors in his discharge processing, it must be presumed that all requirements of law and regulation were met and that his rights were fully protected throughout the separation process.  

5.  The applicant's claim that he does not remember having been advised of his rights by a military attorney is insufficient to establish whether or not he was deprived of due process.  It is noted that he does remember speaking to his commander about his discharge.  If he does not recall speaking to anyone else about his discharge, it may simply be that he waived his right to present his case before a board of officers.  

6.  Counsel's claim that he could not have been AWOL from 14 October to 13 November 1968 because his chain of command knew where he was is noted.  The available records indicate he was AWOL when he was confined by civil authorities on 14 October 1968.  The fact that his chain of command may have known where he was did not change the fact that he was AWOL.  Any Soldier confined by civil authorities while AWOL remained in an AWOL status.  
7.  Counsel contends the applicant's characterization of service should be upgraded because he was held past his ETS date.  Counsel argues that paperwork would have had to be filed to extend him past his ETS date.  Under the law and regulations in effect at the time, this was not the case.  The appropriate authority simply needed to calculate his time lost due to being AWOL and in confinement and add the time lost to his original ETS.  This calculation is recorded on his DA Form 20.

8.  It appears the applicant received an award for his service in Vietnam, and it is noted that he received "excellent" conduct and efficiency ratings while serving in Vietnam.  It is also noted that he was promoted to SP5 at the end of his tour in Vietnam.  Clearly, he was aware of the conduct expected of a Soldier, yet after he had returned to the United States he proceeded to engage in misconduct that led to civil confinement and a civil arrest.  His service in Vietnam was not extraordinary and does not mitigate the pattern of misconduct that led to his undesirable discharge for unfitness.  

9.  The applicant's post-service accomplishments are noted.  While it appears his post-service life has been commendable, post-service accomplishments are not normally a sufficient basis upon which to upgrade a discharge.  

10.  Based on his record of two instances of NJP, two court-martial convictions, and twice being confined by civil authorities, his service was not satisfactory.  Therefore, he is not entitled to 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)                                         AR20130020855





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ABCMR Record of Proceedings (cont)                                         AR20130020855



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