IN THE CASE OF: BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150014388 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 IN THE CASE OF: BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150014388 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. IN THE CASE OF: BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150014388 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. 2. The applicant states he believes his service was under honorable conditions. a. During almost 3 years of active service, he had very few military disciplinary problems. He had one Article 15 in Germany for getting into a fight. He also had a second Article 15 in Vietnam for being a couple of days late returning from leave. These were isolated, minor incidents over the course of his active service. b. He had meritorious service. He spent 20 months in Vietnam as a combat infantryman. As an infantryman, he was doing combat tours regularly. He served 8 months longer than most people spent there. He thinks that this combat service of such long duration, and with no major disciplinary problems, earned him recognition as a veteran. c. He was given an undesirable discharge because of civilian problems only, not military discipline problems. His civilian conviction was related to an act of self-defense. He was in a bar in Louisiana. A fight started in the bar. He did not start the fight and he was not involved in the fight. But the fight became big and he needed to get out of the bar. He was carrying a pistol, and he pistol-whipped someone in order to get out. He got out and left the area, but he was arrested anyway. He knows that he broke the law, but the fact that he was only acting to save himself from a fight should be taken into consideration. He does not know if his military records will include this explanation of what happened. But, he hopes the Board will give him the benefit of the doubt and believe his explanation of events. d. As he only had civilian criminal problems, and because his civilian conviction related to an act of self-defense, he thinks that his extensive combat service as an infantryman should overcome that incident, and that the Department of Veterans Affairs (VA) should recognize him as a veteran. 3. The applicant provides: * letter from the National Personnel Records Center * DD Form 214 (Report of Separation from Active Duty) * Enlistment Contract * DA Form 20 (Enlisted Qualification Record) * DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) * two Article 15s * VA correspondence 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 enlisted in the Regular Army for a 3-year term on 4 August 1970. He completed training and he was awarded military occupational specialty 76Y (Unit Supply Specialist). 3. On 11 February 1971, at Fort Ord, CA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 8 February to 10 February 1971. 4. He served in Germany from on or about 6 April 1971 to on or about 22 December 1971. He also served in Vietnam from on or about 26 February 1972 to on or about 13 December 1972. 5. On 6 May 1972, in Vietnam, he accepted NJP for failing to go at the time prescribed to his appointed place of duty. 6. On 15 June 1972, also in Vietnam, he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty and one specification of absenting himself from his place of duty. The court sentenced him to a forfeiture of pay and restriction. The convening authority approved his sentence on 18 June 1972. 7. Following his Vietnam tour, he was reassigned to Fort Polk, LA. He was assigned to the 1st Battalion, 1st Training Brigade, U.S. Army Training Center. 8. On 20 February 1974, the applicant was convicted by civil authorities of kidnapping and battery committed with a dangerous weapon. The court sentenced him to confinement for 9 years (suspended with supervised probation for 5 years and confinement for 3 years). 9. On 1 March 1974, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)) for a civil conviction. He advised him of his rights. 10. On 4 March 1974, the applicant acknowledged receipt of the separation memorandum. He acknowledged he had been advised of the basis of the contemplated action to separate him due to conviction by civil court, under AR 635-206. He requested consideration of his case by a board of officers and personal appearance before a board of officers. He also requested representation by counsel and elected not to submit a statement in his own behalf. He acknowledged: * he understood he could encounter substantial prejudice in civilian life in the event a general discharge was issued to him * he further understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life 11. On 4 March 1974, his immediate commander initiated separation action against him under the provisions of AR 635-206 by reason of civil conviction recommending an undesirable discharge. His intermediate and senior commanders concurred with the recommended action to eliminate the applicant from service under the provisions of AR 635-206. 12. On 9 and 10 April 1974, a board of officers convened at Fort Polk, LA, with the applicant represented by his counsel (as the applicant was confined). The board of officers considered the applicant's overall service and found him undesirable for further retention because of his conviction by a civil court and because his offense involved moral turpitude. The board of officers recommended his discharge for misconduct and issuance of an Undesirable Discharge Certificate. 13. On 24 April 1974, the convening/separation authority, a major general, approved the board of officers' findings and recommendations. He ordered the applicant reduced to the lowest enlisted grade, if applicable, and discharged under the provisions of AR 635-206 for misconduct by reason of civil conviction. He directed the applicant be furnished an Undesirable Discharge Certificate. The applicant was accordingly discharged on 9 May 1974. 14. His DD Form 214 confirms he was discharged for misconduct with an under other than honorable conditions characterization of service. He completed a total of 3 years, 9 months, and 6 days of net active service. He was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal with Device (1960) * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 15. On 9 January 1975 and 18 December 1979, the Army Discharge Review Board reviewed his separation processing and in each case denied his petition for an upgrade of his discharge. REFERENCE: 1. AR 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. Paragraph 24 of this regulation provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service. If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, their military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the chain of command. Furthermore, Army Regulation 635-206, paragraph 33 provided that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 2. AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) provides the basic policies and procedures for the separation of enlisted personnel. b. Paragraph 3-7a states 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. c. Paragraph 3-7b states 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: 1. The applicant was convicted by a civilian court of kidnapping and battery committed with a dangerous weapon. The court sentenced him to confinement for 9 years (suspended with supervised probation for 5 years, and confinement for 3 years). As required by the applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. His service in Vietnam was considered. His service was marred by misconduct as evidenced by his previous two instances NJP and one court-martial conviction. His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 3. 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. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014388 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014388 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2