IN THE CASE OF:	  

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150003357 


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 that his under other than honorable conditions (UOTHC) discharge was unjust.  He completed an honorable period of service while stationed in Germany and later reenlisted and served in Vietnam.  There was an incident at Fort Polk, LA, when he was jumped by six or more guys and the Military Police got involved.  They told his first sergeant and commander that they needed to transfer him because the guys he embarrassed would come after him and probably kill him, so he was transferred to Fort Bliss, TX.  He does not know why they discharged him with a UOTHC discharge because he always did what he was told.  He should have never been given an Article 15 because he was not involved in what he was accused of.  He further contends that his first sergeant wrote a letter to his commander stating that he was an outstanding Soldier and should not get that type of discharge.  Both his first sergeant and the captain were transferred.  He was exposed to Agent Orange while in Vietnam and is being treated at the Veterans Medical Center.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) covering the period 16 May 1968 to 9 June 1972




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.  His records and the specific circumstances of his discharge are unavailable; however, the applicant provides and his reconstructed record contains two 
DD Forms 214 which are sufficient documentation for the Board to review and make a determination.  The first DD Form 214 shows he completed an honorable period of service from 16 May 1968 to 17 January 1969.

3.  He reenlisted on 18 January 1969 and served in Vietnam from 3 April 1969 to 21 March 1970.

4.  On 9 June 1972, he was discharged under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)).  His 
DD Form 214 shows that his awards included the Combat Infantryman Badge and he completed 7 months and 13 days of net active service this period with 644 days of lost time:

* 4 to 18 June 1970
* 23 to 29 June 1970
* 1 to 10 July 1970
* 7 October 1970 to 24 January 1971
* 25 January 1971 to 9 June 1972

5.  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).  That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or when action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

6.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was unjust and that he was, in effect, innocent of the accusations against him.  The applicant's record is void of the specific facts and circumstances surrounding his discharge; however, the evidence of record shows he had over 600 days of lost time.  The evidence indicates he had engaged in misconduct that warranted separation under the provisions of Army Regulation 635-206. 

2.  His honorable initial period of service and his service in Vietnam is noted, to include award of the Combat Infantryman Badge; however, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  There is no evidence of record does not show and the applicant did not provide any independent evidence showing that his discharge was in error or unjust.  

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)                                         AR20150003357





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ABCMR Record of Proceedings (cont)                                         AR20150003357



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