RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060009628 


	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. Gerard W. Schwartz

Acting Director



Senior Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 discharge be upgraded.

2.  The applicant states, in effect, that he believes the record to be in error or unjust because of the good time he served in the Army.

3.  In an addendum to his DD Form 149, Application for Correction of Military Record, he adds he was drafted into the Army.  He describes how he got shot in the left forearm and elbow on the night infiltration course while he was at Fort Bragg, North Carolina.  After this, it just changed everything for him.  He just could not adjust himself to being a good Soldier.  He would go home on leave and couldn't make himself go back.  He doesn't blame the Army and thinks it was him and, if there is any way possible for his discharge to be upgraded, he would appreciate it. 

4.  He summarizes by stating he went to the Department of Veterans Affairs (VA) for benefits and they said he needed to have his discharge upgraded [in effect, to have his general, under honorable conditions, discharge affirmed].

5.  In support of his request, the applicant submits a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, and a VA Form 21-4138, Statement in Support of Claim.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or an injustice, which occurred on 13 July 1978, the date he was notified by the Office of The Adjutant General and The Adjutant General Center, the Army Discharge Review Board (ADRB) could not affirm his upgraded discharge under review standards required by Public Law 95-126.  The applicant's undated application to the Board was received on 10 July 2006.

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 limitation 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 record shows the applicant was inducted into the Army of the United States on 2 April 1968.  He completed his basic combat training at Fort Bragg, North Carolina.

4.  The evidence shows while at Fort Bragg, the applicant was accidentally injured, on 28 May 1968, in the left arm and elbow, when a machinegun projectile hit the concertina wire and was deflected downwards hitting him while he was negotiating the infiltration course.  A line of duty investigation was conducted and a finding was made the accident was in the line of duty.

5.  The record shows the applicant was assigned in a patient status at Walson Army Hospital, Fort Dix, New Jersey, from 7 June to 24 July 1968.

6.  The applicant was assigned to the US Army Personnel Center, Fort Dix, on 25 July 1968, to undergo training for award of military occupational specialty (MOS) 94B (Cook).  There is no evidence this MOS was awarded to the applicant.

7.  The record shows the applicant was assigned as a patient from 16 October 1968 to 3 March 1969, when he departed en route to Fort Sam Houston, Texas.

8.  On 15 January 1969, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit without proper authority on 6 January 1969 and remaining so absent until 14 January 1969.  The imposed punishment was a forfeiture of $25.00, for one month, and restriction to his unit, chapel and mess hall for 7 days.  The applicant did not appeal the punishment.

9.  On 12 March 1969, the applicant was assigned to advanced individual training at Fort Sam Houston, Texas.  After completing all required training, he was awarded the military occupational specialty (MOS), 91A (Medical Corpsman).

10.  The applicant was promoted to the rank/pay grade, Private First Class/E-3, on 28 April 1969, by Unit Orders Number 9, Company C, First Battalion, U.S. Army Medical Training Center, Fort Sam Houston, Texas.

11.  On 30 July 1969, the applicant received nonjudicial punishment, under the provisions of the UCMJ, for absenting himself from his unit without proper authority on 7 July 1969 and remaining absent until 24 July 1969.  The imposed punishment was a reduction to pay grade E-2, a forfeiture of $29.00, for one month, and restriction to the company and duty area for 14 days.  The applicant did not appeal the punishment.

12.  On 4 December 1969, the applicant received non-judicial punishment, under the provisions of the UCMJ, for absenting himself from his unit without proper authority on 3 November 1969 and remaining so absent until 1 December 1969.  The imposed punishment was a reduction to pay grade E-2, a forfeiture of $29.00, for one month, and restriction to the company and duty area for 14 days.  The applicant did not appeal the punishment.

13.  On 29 March 1971, the applicant was convicted by a special court-martial of absenting himself from his unit without proper authority on 20 January 1970 and remaining so absent until 12 February 1971.  The applicant was sentenced to reduction to Private, pay grade E-1, to a forfeiture of $50.00 pay for 4 months, and to be confined at hard labor for 4 months.  The sentence was approved and ordered executed on 28 April 1971.  The execution of that portion adjudging confinement at hard labor in excess of 60 days was suspended for 60 days at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

14.  The applicant underwent a psychiatric evaluation on 29 April 1971.  The evaluating psychiatrist, an Army medical corps officer, found him to have no disqualifying disease or condition sufficient to warrant a disposition through medical or psychiatric channels.  He was found to be mentally responsible, both to distinguish right from wrong and to adhere to the right and he had the mental capacity to understand and participate in board proceedings.  The evaluating psychiatrist opined the applicant's rehabilitative potential was poor.  The evaluating psychiatrist cleared the applicant psychiatrically for any administrative action or disposition deemed appropriate by his command.

15.  The evidence of record shows that on 7 May 1971, the applicant's unit commander notified him he was recommending that he be discharged from the Army under the provision of Army Regulation (AR) 635-212 for unfitness.  In this notification, the applicant was advised he had the right to present his case to a board of officers, to submit a statement in his own behalf, to be represented by counsel, to waive his right in writing, and to withdraw his waiver of rights any time before the discharge authority approved his discharge.

16.  On 10 May 1971, the applicant acknowledged his commander's intention to separate him from the Army under the provisions of AR 635-212 and waived consideration of his case before a board of officers, waived a personal appearance before a board of officers, waived representation by appointed counsel, military 

counsel, and civilian counsel at his own expense.  The applicant declined to make a statement in his own behalf.  The applicant was advised by a Judge Advocate General's Corps officer of the contemplated separation action and the effects of the separation and the rights available to him.

17.  On 10 May 1971, the applicant's commander recommended the applicant be discharged under the provisions of AR 635-212, for unfitness, and that he be furnished an undesirable discharge.  The applicant's discharge was recommended because he had shown a propensity for absenting himself without leave despite attempts to rehabilitate or develop him as a satisfactory Soldier.  In addition, the commander stated he had repeatedly shown a complete lack of interest in becoming a satisfactory Soldier and his conduct indicate he would never serve any useful purpose while he was in service.  His continued retention in the service, he opined, would adversely affect the military mission.

18.  The applicant's chain of command unanimously recommended approval of his discharge and recommended he receive an undesirable discharge.

19.  On 14 May 1971, the approving authority, a brigadier general, approved the applicant's discharge under the provisions of AR 635-212, for unfitness, and directed the applicant be furnished an undesirable discharge.

20.  The applicant was separated with an undesirable discharge, with his service characterized as under conditions other than honorable, in the rank and pay grade, Private, E-1, on 28 May 1971, under the provisions of AR 635-212.  On the date of his discharge, the applicant had completed 1 year, 8 months, and 18 days active military service with 108 days of time lost under Title 10, US Code 972 and 411 days lost subsequent to his normal ETS (expiration of term of service).

21.  The applicant’s record document that the highest rank and pay grade he held on active duty was Private First Class, E-3.  The applicant's records contain no documented acts of valor, achievement, or service warranting special recognition.

22.  The applicant applied to the DOD Special Discharge Review Board (DOD SDRB) for an upgrade of his discharge on 6 April 1977.  On 21 July 1977, he was notified after having reviewed his case, the DOD SDRB had upgraded his discharge to a general (under honorable conditions) discharge effective 27 May 1977.  The applicant was provided new separation documents.

23.  The ADRB reviewed the applicant's record on 11 April 1978.  The board determined that due to the applicant's numerous act of indiscipline and his total lost time of 519 days, which resulted in punishment on three occasions by non-judicial punishment and one special court-martial, the upgrade of his discharge under the uniform criteria was not deemed appropriate and therefore voted to deny affirmation.

24.  On 8 June 1978, the ADRB notified the applicant about its decision not to affirm the upgrade of his discharge by the DOD SDRP under review standards required by Public Law 95-126.

25.  On 13 July 1978, the applicant was notified by The Adjutant General, Office of The Adjutant General and The Adjutant General Center, Washington, D.C. his previous upgrading of his discharge had been re-reviewed by the ADRB as required by Public Law 95-126.  As a result of this review, the board determined that he did not qualify under the new uniform standards for discharge review.  Accordingly, his upgraded discharge was not affirmed.  He was also notified the DD Form 215 he received in no way changed or modified the upgraded discharge he previously received; however, because of the new law, he would not be able to use that discharge to qualify for benefits under the VA.

26.  AR 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

27.  AR 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

28.  Public Law 95-126 enacted on 8 October 1977, provided generally, that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD Special Discharge Review Program.  It required the establishment of uniform published standards which did not provide 

for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases which met those standards.

29.  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 (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

3.  The evidence of record shows that the applicant was recommended for discharge due to his unfitness.  Attempts to rehabilitate him and to develop him to be a satisfactory Soldier failed because he repeatedly showed a complete lack of interest in becoming a satisfactory Soldier and his conduct indicated he would never serve any useful purpose while he was in service.  He was provided on-the-job training to become a cook and the record reflects he did not qualify for award of the MOS.  He was then provided training as a medical corpsman and was awarded the MOS 91A, which he held on his discharge date.

4.  During his service, the applicant received non-judicial punishment three times and received a special court-martial.  All these punishment actions were imposed due to his propensity for absenting himself from his unit and remaining so absent without authority.

5.  The applicant was discharged with an undesirable discharge.  He applied to the DOD SDRP for an upgrade of his discharge under Public Law 95-126.  His discharge was upgraded to general, under honorable conditions.  The applicant's case was reviewed by the ADRB and, this board voted not to affirm the applicant's discharge because his case did not meet the standards which had been established.  The applicant's discharge was re-reviewed by the ADRB and in July 1978, the ADRB determined a second time he did not qualify under the new uniform standards for discharge review; accordingly, his upgraded discharge was not affirmed

6.  While it is unfortunate the applicant was accidentally injured while he was undergoing training and was hospitalized for his injuries, the record show he was provided medical care and he was physically rehabilitated and restored to duty.

7.  The overall quality of the applicant’s service was considered.  The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and affirmation of his general under honorable conditions discharge.

8.  The Board acknowledges the applicant's desire to have his general, under honorable conditions, discharge affirmed in order for him to make application to the VA for available benefits; however, the Board does not grant relief solely for the purposes of an applicant qualifying for benefits administered by the VA.

9.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

10.  In view of the foregoing, there is no basis for affirming the applicant's general, under honorable conditions, discharge.

11.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 13 July 1978.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 12 July 1981.  However, 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

___KLW_  __PM___  _KSJ____  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.




      __ __
                CHAIRPERSON




INDEX

CASE ID
AR20060009628
SUFFIX

RECON

DATE BOARDED
20070510
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19710528
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060009628



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508