IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140010028 


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.  The applicant states he served 11 months in the Republic of Vietnam and he was put out of the Army for being absent without leave (AWOL) for a few days, no trial or court-martial.  He further states that he worked for a Department of Veterans Affairs (VA) hospital for eight years and he would like some help so he may be able to receive treatment from VA doctors.  

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 on 13 December 1967.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  He arrived in Vietnam on or about 2 June 1968.

3.  On 13 September 1968, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for absenting himself from his place of duty on 12 September 1968.

4.  On 15 April 1969, he received a psychiatric evaluation.  The medical official diagnosed him with passive-aggressive personality and recommended that he be cleared for any administrative action that the command deemed appropriate.

5.  Special Court-Martial Order Number 37, issued by Headquarters, 11th Infantry Brigade, Americal Division, dated 22 April 1969, shows the applicant was convicted by a special court-martial of being AWOL for the period 19 February to 2 March 1969. 

6.  On 16 April 1969, the applicant's immediate commander notified the applicant that he was being recommended for elimination from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  His commander cited the applicant's habits and traits of character manifested by repeated commission of petty offenses and habitual shirking as the reason for his separation recommendation.  The applicant's immediate commander advised him of his right to counsel, his right to a hearing before a board of officers, and his right to submit statements in his own behalf.  He waived all of his rights related to his separation action.

7.  On 8 May 1969, the separation authority approved the applicant's elimination from the Army under the provisions of Army Regulation 635-212 and directed that he be furnished an Undesirable Discharge Certificate.

8.  On 15 May 1969, he was discharged under the provisions of Army Regulation 635-212, with a separation program number of 28B, denoting unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities, and given an undesirable discharge.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service shows he completed 1 year, 4 months, and 21 days of total active service with 11 days of time lost.  

9.  On 21 January 1971, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  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 stated 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.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures 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 applicant's request for an upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to grant him the requested relief.

2.  His record reveals a disciplinary history that includes a conviction by court-martial while in a combat zone.  Accordingly, his chain of command recommended his elimination from the Army.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  There is no evidence in the available record, and the applicant failed to provide any substantiating evidence, which shows his misconduct was a result of any reasons except the choices he made.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  Additionally, the ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for veterans' medical or other benefits.

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)                                         AR20140010028





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ABCMR Record of Proceedings (cont)                                         AR20140010028



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