IN THE CASE OF:	  

		BOARD DATE:	  21 October 2014

		DOCKET NUMBER:  AR20140003902 


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 his undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  He states:

* he had more good time than bad [service]
* he saved many lives while in Vietnam
* he has cancer because of exposure to Agent Orange in Vietnam

3.  He provides no additional documents.

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 (RA) on 17 February 1969 for a period of three years.  He was assigned to the 85th Evacuation Hospital in Vietnam on 8 March 1970.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on eleven separate occasions for the following offenses:

* being absent without leave (AWOL) from 6 to 8 September 1969 and from 1 December 1969 to 20 January 1970
* being absent from his unit on 17 November 1969
* failing to go at the time prescribed time to his place of duty on 10 and 11 April, 10 June, 8 and 12 July, 21 August, and 19 September 1970
* disobeying a lawful order from his superior noncommissioned officer (NCO) on 11 April 1970 (two specifications) and 10 June 1970 (two specifications)
* being found intoxicated on duty as a medical corpsman in the emergency room of the 85th Evacuation Hospital on 7 June 1970
* being absent from his place of duty on 12 July and 14, 15, 16 September 1970

4.  His record also reveals a disciplinary history that includes one conviction by special court-martial of fourteen specifications of failing to go to appointed place of duty.  He was sentenced to reduction to private/E-1, a forfeiture of $75.00 pay for 4 months, and confinement at hard labor for 5 months.

5.  He departed Vietnam on 21 March 1971.

6.  His discharge packet is not available.  However, his DD Form 214 shows he was discharged on 22 March 1971 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness for frequent incidents of a discreditable nature with military authorities.  He was issued a discharge under other than honorable conditions (undesirable).

7.  At the time of his discharge, he completed 1 year, 6 months, and 10 days of creditable active service with 206 days of lost time.

8.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.



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

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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 contends he had more good time than bad [service]; still, his service record shows he has a record of 206 days of lost time due to AWOL and confinement.

2.  The evidence of record shows he served in Vietnam from 6 March 1970 to 21 March 1971.  Although the applicant contends that he saved many lives while in Vietnam, there is no evidence of record to support his claim and this issue alone is not sufficiently mitigating to warrant an upgrade of his discharge.  

3.  It is regrettable that the applicant currently has cancer because of exposure to Agent Orange.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

4.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

5.  His service record shows he received eleven Article 15s and one conviction by a special court-martial, and a record of 206 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for a general under honorable conditions discharge.

6.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to general under honorable conditions.

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)                                         AR20140003902





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ABCMR Record of Proceedings (cont)                                         AR20140003902



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