IN THE CASE OF: BOARD DATE: 20 March 2014 DOCKET NUMBER: AR20130013383 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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions characterization of service. 2. The applicant states he was a good Soldier until he went to Vietnam but returned with hepatitis and addicted to heroin. When he returned to duty in the United States he was assigned to Fort Dix, NJ, where he continued using drugs and engaged in illegal activities. a. While he was home on a pass he was arrested for gun possession and robbery but made bail and returned to the Army. As a result of his arrest he spent some time going back and forth to court dates. He was convicted and served 10 months in jail. After his sentence was completed he returned to the Army with a felony conviction and he was charged with being absent without leave (AWOL). He was eventually discharged with an under other than honorable conditions characterization of service. b. He had never been in any trouble before he went to Vietnam. His involvement in drugs began in Vietnam and has ruined his entire life. He takes complete responsibility for his actions. Nevertheless, he would like his discharge upgraded so that he can receive medical benefits from the Department of Veterans Affairs (VA). 3. The applicant provides: * self-authored statement, dated 15 July 2013 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * a letter and a memorandum from the Army Board for Correction of Military Records (ABCMR), dated 14 February 1994 * ABCMR Docket Number AC93-13741, dated 2 February 1994 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC93-13741, on 2 February 1994. 2. The applicant does not meet the two-tiered criteria for reconsideration in that his request is neither submitted within one year of the original decision nor does it contain any new evidence. However, the original Record of Proceedings (ROP) did not fully explain the reason for denial of his request or explain the different types of characterization of service. Therefore, the Board will reconsider his request as an exception to policy. 3. The applicant was inducted into the Army of the United States on 11 March 1968 and held military occupational specialty 94B (Cook). The highest rank/grade he attained while serving on active duty was private first class/E-3. 4. His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam from 5 March 1969 to 17 June 1969. 5. After arriving in Vietnam, he performed his duties with Company C, 725th Maintenance Battalion, 25th Infantry Division until he was medically evacuated to a hospital in Japan on or about 17 June 1969 and treated for hepatitis. 6. His record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 7 May 1969 which shows he received nonjudicial punishment (NJP) while assigned to the medical holding detachment in Japan for being AWOL from 30 April 1969 to 1 May 1969. 7. His DA Form 20 shows he was assigned to Fort Dix, NJ on 9 July 1969, where he served as a cook. Additionally, his DA Form 20 shows the following periods of lost time: * AWOL from 6 December 1969 to 2 March 1970 (86 days) * Confinement (CONF) from 3 March 1970 to 18 March 1970 (16 days) * AWOL from 6 April 1970 to 22 April 1970 (16 days) * Civil CONF from 23 April 1970 to 16 March 1971 (328 days) 8. On 19 March 1970, he was convicted by a summary court-martial of being AWOL from on or about 6 December 1969 to on or about 3 March 1970. His sentence was a forfeiture of $100.00. The sentence was approved on 9 April 1970. 9. As stated in the previous ROP, he was arrested in New York City, NY, on 23 April 1970 and charged with robbery and possession of a dangerous weapon. He was sentenced to 1 year in jail/prison and was committed to the New York City, NY Correctional Institute for Men on 30 September 1970. 10. His record contains a memorandum issued by the Staff Judge Advocate (SJA), dated 24 November 1970, wherein the SJA stated that the offense for which the applicant was convicted was sufficient to support his discharge in accordance with (IAW) Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), paragraph 33. 11. On 5 January 1971, he was notified that, because of his conviction by a civil court, he was being recommended for separation IAW Army Regulation 635-206, paragraph 33 and that he may receive an Undesirable Discharge Certificate. The notification advised him of his rights, the consequences of waiving his rights, and requested he complete and return an attached acknowledgement form. 12. He acknowledged receipt of the notification on 8 January 1971 and indicated that he waived consideration of his case before a board of officers, would not submit statements on his own behalf, he was currently being held in civil confinement, and he did not intend to appeal his civil conviction. 13. On 19 January 1971, his commander initiated separation proceedings in accordance with Army Regulation 635-206 and recommended he be furnished with an Undesirable Discharge Certificate. 14. On 19 January 1971, the court-martial convening authority approved the request for discharge under the provisions of Army Regulation 635-206, paragraph 33 and directed he be furnished an Undesirable Discharge Certificate. 15. On 16 March 1971, he was discharged under the provisions of Army Regulation 635-206, paragraph 33, with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 1 year, 9 months, and 16 days of creditable active service with 446 days of lost time. 16. On 27 December 1985, the Army Discharge Review Board denied his request for an upgrade of his characterization of service and determined he had been properly and equitably discharged. 17. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court. An undesirable discharge was normally considered appropriate. 18. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, the regulation currently in effect, establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 19. Army Regulation 635-200, paragraph 3-7, 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. 20. Army Regulation 635-200, paragraph 3-7, 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 record shows was discharged IAW Army Regulation 635-206 for misconduct-conviction by civil authorities. 2. Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. 3. He received NJP under the provisions of Article 15 of the UCMJ, a conviction by court-martial, he had an extensive record of lost time (446 days) and he was convicted and sentenced by civil authorities for robbery and possession of a dangerous weapon. As such, the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case. 4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits. Every case is individually decided based upon its merits when an applicant requests a change in a member’s 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 to amend the decision of the ABCMR set forth in Docket Number AC93-13741, dated 2 February 1994. _______ _ 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) AR20130013383 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130013383 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1