BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017348 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ _x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017348 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017348 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 that his under other than honorable conditions discharge issued on 2 July 1970 be upgraded to a general discharge. 2. The applicant states when he returned from service in Vietnam, he was absent without leave (AWOL) from Fort Riley, Kansas. His father had a heart attack and he requested leave but they would not let him go. Not knowing if his father was going to pass away, he went AWOL. He suffers from exposure to Agent Orange in Vietnam and due to his discharge, he cannot obtain health care from the Department of Veterans Affairs (VA). 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 2 July 1970 * DD Form 493 (Extract of Military Records of Previous Convictions) showing three special court-martial records * four letters of post service character reference from a city chief of police, an acquaintance, his mother-in-law, and his wife * the minutes of a city council meeting, dated 15 March 2006, which show the applicant as city councilor and previously a member of the city planning committee 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 National Personnel Records Center (NPRC) reports that they have no records on the applicant and that his records were likely destroyed in a fire at the NPRC in 1973. 3. The applicant’s DD Form 214 shows he enlisted in the Regular Army on 27 December 1967 at the age of 17 years and 10 months. He completed basic combat training and training as a light vehicle driver for which he was awarded military occupational specialty 64A10. After completing training, he was assigned to the 4th Infantry Division Support Command in Vietnam from 29 May 1968 to 24 June 1969. 4. On 27 September 1968, while in Vietnam, the applicant received a special court-martial for violation of a lawful general regulation and a lawful order. He was sentenced to forfeiture of $80 per month for three months and reduction to private E2. 5. On 27 January 1969, while in Vietnam, the applicant received a special court-martial for being AWOL in Vietnam from 5 January 1969 to 13 January 1969. He was sentenced to forfeiture of $73 per month for three months, reduction to private E1, and confinement at hard labor for three months (45 days suspended). 6. On 24 April 1970, while at Fort Ord, California, the applicant received a special court-martial for being AWOL from 28 September 1969 to 9 March 1970, 163 days. He was sentenced to forfeiture of $53 per month for three months and reduced to private E1. 7. Between 10 March 1968 and 26 June 1970, the applicant lost 260 days of service time due to AWOLs and confinements: * 6 days from 10 March 1968 thru 15 March 1968 prior to deployment to Vietnam * 8 days from 5 January 1969 thru 12 January 1969 for AWOL in Vietnam * 19 days from 14 February 1969 thru 4 March 1969 for confinement in Vietnam * 163 days from 28 September thru 8 March 1970 for AWOL in the continental United States * 64 days from 24 March 1970 thru 26 June 1970 8. On 2 July 1970, the applicant was discharged under Army Regulation 635-212 (Discharge - Unfitness and Unsuitability), separation program designation 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities); with an UOTHC characterization of service. He was credited with 1 year, 9 months, and 16 days service of which 1 year and 26 days were in Vietnam. REFERENCES: 1. Army Regulation 635-212 (Discharge, Unfitness and Unsuitability), then in effect, set forth the policy for administrative separation for unfitness. It stated, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 2. Army Regulation 635-200 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. 3. On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary such as AWOL in or from the combat area, this program, known as the DOD Special Discharge Review Program (SDRP), required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual. DISCUSSION: 1. The applicant completed an assignment in Vietnam. However, he had a period of AWOL while in Vietnam. 2. He was 17 years and 10 months of age when he enlisted and 18 years of age while serving in Vietnam. 3. The applicant was credited with 1 year, 9 months, and 16 days service and had 260 days lost time. 4. The applicant states he went AWOL from Fort Ord because his father had a heart attack and his unit would not give him leave to see his father. He feared that his father might not live. 5. His post service conduct shows that he was on a city planning committee and a city councilman in 2006, is married, and has a son. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017348 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017348 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2