BOARD DATE: 26 January 2012 DOCKET NUMBER: AR20110014810 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 under honorable conditions discharge (general) to a fully honorable discharge. 2. The applicant states: * He should have been discharged on 16 June 1971 but he was arrested by civil authorities for a drug offense on 4 April 1971; he was released on bail on 9 April 1971 and he returned to military control * The Army delayed his discharge until after his trial; he should have been presumed innocent before his trial and should have been discharged honorably * He did not sign a statement indicating he was aware of his rights * It wasn't until 8 July 1971 that he received his general discharge * He served in Vietnam as a ranger in the most challenging and dangerous assignments * Due to his mission, the Army issued him and others drugs to enhance their endurance and ward off fatigue * He returned from Vietnam but he was never offered counseling; so he continued using drugs and he was arrested by civilian authorities * He completed his prison sentence and he was paroled on first hearing * His post-discharge achievements include successful computer business and inventions in the energy industry * He wants to correct the wrong and obtain medical benefits 3. The applicant provides a copy of the commander's report of separation. 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's records show he enlisted in the Regular Army on 17 June 1968 and he held military occupational specialty 11B (Light Weapons Infantryman). 3. He served in Vietnam from 2 June 1969 to 1 June 1970 with various units, including the 1st Battalion, 22nd Infantry; Company K, 75th Infantry; and 2nd Battalion, 8th Infantry. 4. He was awarded or authorized the Vietnam Service Medal with 4 bronze service stars, Combat Infantryman Badge, Republic of Vietnam Campaign Medal, Army Commendation Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and 2nd Class Gunner with Machinegun Bar (M-60). 5. On 11 December 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 6. On 29 April 1971, his immediate commander initiated separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness. He stated that the applicant was arrested by civil authorities on 4 April 1971 for possession and sale of heroin. He was released on bond on 19 April 1971. The commander recommended a general discharge. 7. On 30 April 1971, the applicant acknowledged receipt of the separation memorandum. He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He waived consideration of her case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf. 8. Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unfitness with a general discharge. 9. The applicant underwent a mental status evaluation. He was found mentally responsible, able to distinguish right from wrong, able to adhere to the right, and met the retention standards. He was cleared for separation from the military under the provisions of Army Regulation 635-212. 10. On 13 and 21 May 1971, the applicant's intermediate and senior commanders recommended approval of the discharge with the issuance of a general discharge. 11. Consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished a General Discharge Certificate. Accordingly, the applicant was discharged on 17 June 1968. 12. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness with a separation program number (SPN) of 28b (unfitness). His character of service was under honorable conditions. He completed 2 years, 11 months, and 14 days of total active service and he had 38 days of lost time from 4 to 18 April 1971 and from 16 June to 8 July 1971. 13. On 28 June 1973, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 14. Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 15. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his one instance of NJP and civilian arrest for a drug offense. Accordingly, his chain of command initiated elimination action against him. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of service is commensurate with his overall record of military service. 2. With respect to his arguments: a. The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. Characterization may be based on conduct in the civilian community. The reasons for separation, including the specific circumstances that form the basis for the separation, will be considered on the issue of characterization. b. Once he was arrested by civil authorities, his records were flagged. Additionally, he had a responsibility to make good any lost time he incurred as a result of imprisonment, which impacted the date of his separation. c. Contrary to his argument that he did not sign a statement indicating he was aware of his rights, the evidence of record shows on 30 April 1971, he consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He waived consideration of her case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf. d. Nowhere in his records does it show his drug use and arrest was caused by his service in Vietnam. Even if those allegations were true, there were many other avenues the applicant could have used to address those issues had he chosen to use them. e. His post-service achievements are noteworthy. However, neither his post-service achievements nor the passage of time is sufficiently mitigating to change his character of service. 3. The reason for his discharge and the characterization of service were both proper and equitable. Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, he is not entitled to an upgrade of his general discharge to fully honorable. 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) AR20110014810 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110014810 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1