IN THE CASE OF: BOARD DATE: 29 March 2011 DOCKET NUMBER: AR20100021928 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 undesirable discharge (UD) be upgraded to an honorable discharge (HD). 2. The applicant states, in effect, the Army betrayed and lied to him throughout his entire period of service. He details his complaints and what he believes to be a betrayal of his goals for a career in the Army in a 10 page narrative. He also states: * He joined the military with the intent of making it a career * While in airborne training he was told he was too young to go into the Special Forces and a week later he was told he was too young to join the Rangers * After he was rejected he went absent without leave (AWOL) and he was court-martialed * He was told he could make up the time lost and be considered for the programs he wanted, but he was sent to Vietnam 4 weeks later * While in Vietnam he earned the Bronze Star Medal for valor, two Army Commendation Medals for valor, and the Purple Heart * He was advanced to specialist (E-4) but his records were destroyed so when he returned to the States he could not prove any of these facts * When he earned his "stripe" back he was made an assistant drill instructor only to be transitioned into a new program that was not received well * He had pay problems and he became depressed and went AWOL again * At the time of separation he was repeatedly told it would be easy to get his discharge upgraded and that after 5 years it would automatically be upgraded 3. The applicant provides copies of his DD Form 214 (Report of Transfer or discharge), 17 documents from his service personnel record, a Department of Veterans Affairs (VA) mental health treatment record, two responses that he received from the National Personnel Records Center due to his requests for documents, and four character reference letters. 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. It is believed that the applicant's military records were lost or destroyed either in the National Personnel Records Center fire of 1973 and/or during his period on active duty. Information herein was obtained from documents provided by the applicant. 3. The applicant's enlistment documents show, on 22 November 1967, at age 17 and a half, he enlisted in the Regular Army with parental consent, for 3 years and airborne training. 4. He appears to have completed the training requirements and he was awarded military occupational specialty 11B (Light Weapons Infantryman). 5. On 12 September 1968, the applicant was convicted by a special court-martial of being AWOL from 7 April through 28 August 1968. He was assigned to the School Training Center, Fort Gordon, GA at the time. 6. On 7 October 1969, while assigned to Fort Jackson, SC, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice for failure to go to his appointed place of duty and breaking restriction. He was assigned to D Company, 7th Battalion, 3rd Brigade, Fort Gordon, GA at the time. 7. His DD Form 214 shows he was discharged on 6 November 1972 under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service with a UD in the rank of private/E-1. He completed 2 years, 5 months, and 4 days of creditable service. His DD Form 214 also shows he was awarded the Army Commendation Medal, Purple Heart, Vietnam Service Medal, National Defense Service Medal, and the Combat Infantryman Badge. Item 30 (Remarks) states he was discharged with temporary records and he had 911 days of lost time. However, this does not include the period of AWOL from 7 April-28 August 1968. 8. The DA Form 20 (Enlisted Qualification Recorded) that was provided by the applicant is incomplete. Item 31 (Foreign Service) contains no entry. The first entry in item 38 (Record of Assignments) is dated 17 July 1969; the applicant was a duty Soldier assigned to Fort Jackson, SC. Item 39 (Campaigns) contains no entries. Item 40 (Wounds) contains no entries. Item 41 (Awards) show two Army Commendation Medals (both with "V" Device), Bronze Star Medal with "V" Device, two Purple Hearts, Vietnam Service Medal, National Defense Service Medal, and the Combat Infantryman Badge. All eight of these medals have orders numbers listed next to them (or cite the issuing authority); however, none indicate that the medals were issued. Item 44 (Time Lost) shows three periods of AWOL totaling 911 days. However, this entry also does not include the period of lost time that he had from 7 April-28 August 1968. 9. The applicant did not provide copies of any orders, citations, or certificates for any awards. None of the orders for the above awards are in the available records and a review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) failed to locate any orders or evidence concerning the awards. 10. The applicant's VA medical record shows treatment for post traumatic stress disorder. On 20 May 2008, the applicant reported he served 2 years in Vietnam and he received an honorable discharge. 11. Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations: a. Chapter 10 states that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an HD or general discharge (GD) is authorized, a discharge under other than honorable conditions is normally considered appropriate. However, at the time the applicant was discharged a UD was considered appropriate. b. Paragraph 3-7a states that an HD is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. c. Paragraph 3-7a(1) in pertinent part states: "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art 15." "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service." d. Paragraph 3-7b state that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 12. The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days. 13. Army Regulation 15 - 185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states 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 states in effect, the Army betrayed and lied to him throughout his entire period of service. 2. The applicant appears to have misrepresented his characterization of service when he was treated at the VA. He indicated he had served 2 years in Vietnam and he received an HD when he had a UD. This significant misrepresentation renders the remainder of his statements questionable as well. 3. The applicant's period of service in Vietnam and the awards for that period of service cannot be verified. 4. The applicant had more than 911 days of lost time and only 516 days of creditable service. Given that he earned the awards listed on his DD Form 214, they are not shown to be so exceptionally meritorious as to outweigh his significant period of lost time due to being AWOL on several occasions, court-martial conviction and nonjudicial punishment. Therefore, the evidence does not support upgrading his discharge to a GD or an HD. 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) AR20100021928 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100021928 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1