IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140007829 


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, the widow of a deceased former service member (FSM), requests, in effect, an upgrade of the FSM's under other than honorable conditions characterization of service.

2.  The applicant states:

* the FSM was only 17 years old when he enlisted
* he was an excellent engineer
* his conduct was excellent prior to going to Vietnam
* he was setup by other Soldiers to take the blame for possession of heroin
* he got hooked on heroin when cigarettes were laced with heroin by the Vietnamese

3.  The applicant provides the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), two pages of his DA Form 20 (Enlisted Qualification Record), his death certificate, a marriage license, two social security cards, a DA Form 20B (Insert Sheet to DA Form 20), and four self-authored statements.

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 FSM enlisted in the Regular Army on 29 January 1969 at age 17.  He completed initial entry training and he was awarded military occupational specialty 63H (Wheeled Vehicle Repairman).  

3.  His DA Form 20 shows in:

	a.  Item 38 (Record of Assignments) – 

* between 6 February 1969 and 4 September 1971, he received "excellent" conduct and efficiency ratings in five assignments, including his first duty assignment in Vietnam (he arrived in Vietnam on or about 1 November 1970)
* for the period 5 September to 3 November 1971, he received "unsatisfactory" conduct and efficiency ratings while serving in Vietnam with the 720th Military Police Battalion
* he was assigned to drug rehabilitation in Vietnam from 5 to 16 November 1971 and he was later assigned in a patient status at a hospital at Fort Knox, KY

	b.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration of Term of Service) he was – 

* AWOL from 25 May to 19 June 1970
* AWOL from 22 June to 22 August 1970
* AWOL from 8 September to 13 September 1970
* AWOL from 20 October to 23 October 1970
* confined from 11 June to 5 September 1971

4.  The available records show he received nonjudicial punishment on:

* 23 January 1970, for leaving his appointed place of duty without proper authority 
* 31 August 1970, for absenting himself from his unit without proper authority on two occasions
 
5.  Special Court-Martial Order Number 20, dated 20 July 1971, issued by Headquarters, 79th Maintenance Battalion, shows he was found guilty of wrongfully having in his possession five vials, more or less, of heroin.  

6.  The complete facts and circumstance of his discharge are not available for review.  However, his record contains a DD Form 214 showing he was discharged on 23 November 1971 under the provisions of Army Regulation 
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), and his service was characterized as under conditions other than honorable.  He was assigned Separation Program Number (SPN) 28B (frequent involvement in incidents of a discreditable nature with civil or military authorities).  He completed 2 years, 4 months, and 12 days of total active service, with 167 days of lost time.  

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

8.  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) 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.

9.  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 available evidence does not support the applicant's request to change the FSM’s characterization of service to honorable.

2.  The applicant’s contention that the FSM was only 17 when he enlisted is noted; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  The complete facts and circumstances of his discharge are not available; however, his record shows lengthy periods of AWOL (prior to ever arriving in Vietnam) and he served nearly 3 months in confinement.  He was assigned an SPN indicating the basis for his discharge was frequent involvement in incidents of a discreditable nature with civil or military authorities.  The available evidence supports the decision to discharge him for this reason.  In the absence of evidence showing otherwise, it is presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  Based on his court-martial conviction and lengthy periods of being AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis upon which to change the characterization of his service to honorable or 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)                                         AR20140007829



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ABCMR Record of Proceedings (cont)                                         AR20140007829



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