RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060013680 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann

Member

Mr. Gerald J. Purcell

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 to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he received an undesirable discharge and requests upgrade of his character of service so that he may apply for benefits from the U.S. Department of Veterans Affairs (VA).

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 October 1974, the date of his discharge from the Army.  The application submitted in this case is dated 15 September 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 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’s military service records show that he enlisted in the Regular Army for a period of 2 years on 17 July 1973.  He was trained in, awarded, and served in military occupational specialty (MOS) 91A (Medical Corpsman) and was subsequently awarded MOS 91B (Medical Specialist).  The highest rank the applicant attained was private/pay grade E-2.

4.  On 31 May 1974, the applicant accepted non-judicial punishment (NJP) for willfully disobeying a lawful order from his superior noncommissioned officer and failure to go at the time prescribed to his appointed place of duty.  His imposed punishment was reduction to private/pay grade E-1, forfeiture of $35.00 pay for
2 months, and 7 days correctional custody.

5.  On 9 August 1974, the applicant accepted NJP for disrespect toward his superior commissioned officer and disobeying a lawful order from his commanding officer.  His imposed punishment was reduction to private/pay grade E-1 and forfeiture of $60.00 pay.
6.  On 27 August 1974, the applicant accepted NJP for resisting lawful apprehension by a Military Police patrol unit.  His imposed punishment was forfeiture of $50.00 pay, 7 days extra duty, and 7 days restriction.

7.  The applicant's military service records contain 17 AE Forms 113-4 (Record of Informal Counseling Session), ranging in dates from 22 February 1974 through 19 August 1974.  These documents show that the applicant was counseled by his superior noncommissioned officers and commissioned officers concerning various subjects, including his personal hygiene, military appearance and bearing, personal attitude, personal finances, and disrespect toward his superior noncommissioned officers and commissioned officers.

8.  On 30 September 1974, the unit commander notified the applicant of his intent to initiate action to effect the applicant's discharge from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness.  The recommendation was based on the applicant’s frequent incidents of a discreditable nature with civil or military authorities.

9.  On the same day, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel. 

10.  The applicant acknowledged that he understood that he may be furnished an undesirable discharge under other than honorable conditions; that he may be ineligible for many or all VA benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

11.  On 8 October 1974, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-5a(1) for unfitness and that he receive an Undesirable Discharge Certificate (DD Form 258A).  On 17 October 1974, the applicant was discharged accordingly.

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), issued to the applicant at the time, confirms that he completed
1 year, 3 months, and 1 day net active service during the period under review.

13.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.
14.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 13 of the Personnel Separations regulation set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions.

16.  Army Regulation 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.

17.  Army Regulation 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 the Soldier's separation specifically allows such characterization.

18.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a general discharge under honorable conditions so that he may apply for VA benefits.
2.  The evidence of record shows that, prior to his separation, the applicant was advised that his undesirable discharge under other than honorable conditions may deprive him of many or all Army benefits; that he may be ineligible for many or all VA benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  In addition, the applicant indicated that he understood these facts.  Moreover, the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government benefits.  Consequently, the applicant provides insufficient evidence to support his request.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service for that period of service.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of satisfactory or acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions nor is he entitled to an honorable discharge.

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

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 October 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
16 October 1977.  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

___JEV__  ___PHM_  ___GJP _  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.




______James E. Vick______
          CHAIRPERSON




INDEX

CASE ID
AR20060013680
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/24
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19741017
DISCHARGE AUTHORITY
AR 635-200, Chapter 13, Paragraph 13-5a(1)
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.