RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20070001803 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk 

Member

Mr. John G. Heck

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 to an honorable discharge, or a general discharge.

2.  The applicant states, in effect, that he was led to believe his discharge would be upgraded six months after his discharge.  He states he would like for his discharge to be upgraded so he can receive medical treatment from the Department of Veterans Affairs (DVA).  He states that the DVA doctors started to treat his medical condition, but now they are saying he is no longer eligible due to the nature of his discharge.  He needs to have his discharge upgraded because he would like for the DVA doctors to continue their treatment.  He cannot afford to find any other doctors and he does not want his medical problems to be diagnosed again.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 31 January 1966.  The application submitted in this case was received on  
5 February 2007.

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 records show that he initially entered active duty on  
15 August 1961.  He served in the military occupational specialty 293.10 (Radio Relay and Carrier Operator) until he was honorably discharged on 6 December 1962.  He then immediately reenlisted on 7 December 1962.

4.  On 26 March 1963, charges were preferred against the applicant for being absent without leave (AWOL) 18 March 1963.  The applicant had been offered nonjudicial punishment (NJP), but refused it, demanding instead trial by summary court-martial.  The applicant was found guilty of the offense.

5.  On 13 May 1963, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating a standing order from the Battalion Commander by going into a German Gasthaus.  On 14 May 1963, the applicant appealed the Article 15.  On 17 May 1963, the Acting Commander considered the applicant's appealed and found it was without merit.

6.  On 16 October and 18 November 1963, charges were preferred against the applicant for being AWOL during the periods 9-15 October and 11-12 November 1963.  The applicant was found guilty of both offenses.

7.  On 27 April 1965, the applicant was convicted by a special court-martial of two specifications for AWOL during the periods 12-15 March 1965 and  
18-23 March 1965, and two specifications for wrongfully and unlawfully making a check to defraud (Owen Texaco Service) and (North Gate Texaco) for procurement of personal articles on 20/21 March 1965.  His punishment was confinement for six months and forfeiture of $75.00 per month for six months.  The four previous convictions were considered.

8.  On 10 August 1965, the applicant was convicted by a special court-martial of one specification for violating conditions of parole by leaving the Fort Huachuca Military Reservation.

9.  On 16 December 1965, the applicant's commander recommended that the applicant be discharged under the provision of Army Regulation 635-208 (Personnel Separation).

10.  The applicant was counseled and advised of his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf and his right to be represented by counsel at a hearing.  The commander also explained the applicant's rights in conjunction with his recommendation and the effect of waiving those rights.

11.  The applicant acknowledged that he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the DVA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

12.  On 5 January 1966, the separation authority approved the applicant's commander's recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  On 31 January 1966, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of  
7 years and 9 days of active service and he had accrued 343 days of time lost.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

14.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  The regulation provided, in pertinent part, for the separation of personnel where there was evidence of frequent incidents of a discreditable nature with civil or military authorities, an established pattern of shirking and showing dishonorable failure to pay just debt. Action to separate an individual was to be taken when, in the judgement of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

15.  Army Regulation 635-200 (Personnel Separations), 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 (emphasis added), 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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable, or a general discharge, so he can continue to receive medical treatment from the DVA.

2.  The evidence shows that the applicant was AWOL during the periods  
18 March 1963, 9-15 October 1963, 11-12 November 1963, 2-15 March  
1965, and 18-23 March 1965.  He accepted NJP for violating a standing order from the Battalion Commander by going into a German Gasthaus and he was convicted for wrongfully and unlawfully making a check to defraud two local Gas Stations for procurement of personal articles.  As such, an undesirable discharge was equitable and proper.

3.  The applicant's statement that the DVA is no longer providing medical treatment for his medical condition is well noted; however, the Board does not correct a properly constituted record in order to establish entitlement to benefits by other agencies.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  The applicant's discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an undesirable discharge for unfitness.  Therefore, he is not entitled to an honorable or a general discharge.

6.  The applicant states that he was led to believe his discharge would be upgraded after six months is noted.  However, the Army does not have or ever had a policy for an automatic upgrade.

7.  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.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 January 1966; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
30 January 1969.  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

___jlp___  ____lds__  ____jgh__  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.




_________Linda D. Simmons________
          CHAIRPERSON




INDEX

CASE ID
AR20070001803
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070726
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.