RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 September 2005
	DOCKET NUMBER:  AR20050001221


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Ms. Beverly A. Young

Analyst

The following members, a quorum, were present:


Ms. Shirley Powell 

Chairperson

Mr. Robert Duecaster

Member

Ms. Jeannette McCants

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded.

2.  The applicant states that he joined the Army at 17 years old.  By the time he was 20 years of age, he was leaving the service and had served in Vietnam.  He states he had never been introduced to drugs, but returning from Vietnam, he was fully engaged in most drugs.  He states that he still suffers the effects of that part of his life today.  He was told in 1973 that his discharge would be changed or upgraded after six months.  He is now over 50 years old and his life has been a shambles.  He has been disoriented since Vietnam, depressed and on the verge of suicide at times.  Now he needs help from his country.  He wants to be able to go to the Department of Veterans Affairs and get the benefits he was led to believe he would receive.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his DD Form 215 (Correction to DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 August 1973, the date of separation from active duty.  The application submitted in this case is dated 5 January 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 4 January 1971 for a period of 3 years.  He completed basic combat training at Fort Leonard Wood, Missouri. He was further assigned to Fort Eustis, Virginia in March 1971 for advanced individual training (AIT) in military occupational specialty (MOS) 57A (Duty Soldier).  

4.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Norma Date ETS) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 12 April 1971 through 18 April 1971 and from 3 May 1971 through 9 May 1971.  There is no record of nonjudicial punishments for these periods of AWOL.

5.  The applicant's DA Form 20 shows he did not complete AIT for training in MOS 57A at Fort Eustis, Virginia and was reassigned to Fort Leonard Wood, Missouri for training in MOS 71B (Clerk Typist).  

6.  On 17 July 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being AWOL from 7 July 1971 through 11 July 1971.  His punishment consisted of a forfeiture of $70.00 pay per month for a period of 2 months, 45 days extra duty and 45 days restriction to run concurrently.

7.  Upon completion of AIT, the applicant was reassigned to Vietnam on 1 September 1971.  

8.  On 10 February 1972, he was convicted by a summary court-martial of disobeying a lawful order from a noncommissioned officer.  He was sentenced to a forfeiture of $75.00 per month for one month.

9.  On 3 April 1972, he accepted nonjudicial punishment under Article 15 for wrongful possession of five vials of suspected habit forming drugs.  His punishment consisted of a forfeiture of $144.00 pay per month for a period of 2 months and a reduction to the grade of private E-1.

10.  The applicant departed Vietnam on 18 April 1972 and was reassigned to Fort Carson, Colorado.

11.  On 25 October 1972, he accepted nonjudicial punishment again under Article 15 for failing to go to his appointed place of duty and for wrongfully wearing a civilian coat over his fatigue uniform.  His punishment consisted of reduction of one grade to private E-2 (suspended until 24 December 1972).

12.  He accepted nonjudicial punishment under Article 15 on 16 January 1973 for being absent from his appointed place of duty.  His punishment consisted of reduction of one grade to private E-1 (suspended until 15 April 1973), 14 days extra duty and a forfeiture of $70.00.

13.  A bar to reenlistment was imposed against the applicant on 3 April 1973.  The unit commander stated that the applicant had received two Article 15s since being assigned to the unit for being absent from his place of duty and missing a company formation. 

14.  On 13 June 1973, the applicant was convicted by a special court-martial of pushing a commissioned officer in the chest with his hands and disobeying a lawful command from his superior commissioned officer.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $100.00 pay per month for 4 months

15.  On an unknown date, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to numerous incidents of misconduct.  He was advised of his rights.  

16.  On 26 June 1973, the applicant acknowledged notification of pending separation action, consulted with legal counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and did not submit statements in his own behalf.  He acknowledged that if he was issued an under other than honorable conditions discharge (UOTHC), he would be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he would expect to encounter substantial prejudice in civilian life.

17.  On 3 August 1973, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness with issuance of an Undesirable Discharge Certificate and waived rehabilitation transfer requirements.

18.  The applicant was discharged on 10 August 1973 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  He had completed 2 years, 6 months and 17 days of creditable active military service with 21 days of lost time.  

19.  On 30 November 1977 and 18 August 1981, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge to honorable.

20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.


21.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

22.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

23.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

24.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant's service record shows he received four Article 15s, one summary court-martial, one special court-martial and a bar to reenlistment.  

3.  Although the applicant contends that he was told that his discharge would be upgraded to honorable after 6 months, there is no policy or regulation within the Army which allows automatic upgrading of discharges.

4.  He contends he was led to believe he would get Department of Veterans Affairs' benefits.  He was informed on 26 June 1973 that if he were issued an UOTHC he would be ineligible for many or all benefits as a veteran under both Federal and State laws.

5.  The applicant’s service warranted the type of discharge directed and the reasons for his separation were appropriate considering all the facts of the case.

6.  There is no apparent error, injustice, or inequity on which to base recharacterization of his discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 August 1981, the date of the ADRB review; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 August 1984.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

SP______  RD______  JM______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




Shirley Powell________
          CHAIRPERSON


INDEX

CASE ID
AR20050001221
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050913
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110.0000
2.

3.

4.

5.

6.