RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 September 2007
	DOCKET NUMBER:  AR20070003445 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Thomas A. Pagan

Chairperson

Mr. Eric N. Anderson

Member

Mr. Paul M. Smith

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, an upgrade of his discharge.

2.  The applicant states, in effect, that he needs his discharge upgraded so he may get medical treatment at the Department of Veterans Administration (DVA) facilities. 

3.  The applicant did not provide any documentation in support of his request.

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's record show that he enlisted in the Regular Army on 10 January 1968 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36K (Field Wireman) and the highest rank he attained while serving on active duty was specialist/pay grade E-4.  The applicant served in the Republic of Vietnam during the period 8 November 1968 through 28 July 1969.

3.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows: 

	a.  On 22 July 1968, for unlawfully striking another Soldier on and about the head with his fist.  His punishment consisted of reduction to the grade of private/pay grade E-2 (suspended for 30 days) and a forfeiture of $24 pay for 1 month.

	b.  On 8 March 1968, for leaving his appointed place of duty without authority.  His punishment consisted of a forfeiture of $22 pay.
	c.  On 2 March 1969, for being absent without leave (AWOL) during the period from on or about 1 March 1969 to on or about 1 March 1969.  His punishment consisted of a forfeiture of $25 pay.

	d.  On 27 March 1969, for disobeying a lawful order.  His punishment consisted of a forfeiture of $25 pay.

	e.  On 1 May 1969, for willfully discharging a firearm at the main gate.  His punishment consisted of reduction to the grade of private first class/pay grade   E-3.

4.  Item 50 (Synopsis of Specifications, Including Date of Offense) of the applicant's DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Convictions) shows that the applicant was found sleeping upon his post on or about 10 May 1969 and was disrespectful in language towards his superior noncommissioned officer on or about 14 July 1969.

5.  On 26 June 1969, the applicant pleaded guilty at a Special Court-Martial (SPCM) to one specification of sleeping on post and one specification of being disrespectful towards a superior noncommissioned officer.  The SPCM sentenced the applicant to reduction to the grade of private/pay grade E-1, confinement for 6 months, and forfeiture of $73 per month for 6 months. 

6.  On 8 July 1969, the applicant underwent a psychiatric evaluation and was found mentally responsible.  The military psychiatrist cleared him for any administrative or judicial action deemed appropriate by the chain of command to include discharge in accordance with Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness, and Unsuitability).

7.  On 14 July 1969, the applicant was notified of his pending separation from the service under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.  

8.  After consulting with counsel on 15 July 1969, the applicant waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement in his own behalf and acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged that if an undesirable discharge under conditions other than honorable were issued he may be ineligible to many or all benefits as a veteran under both Federal and State laws. 
9.  On 16 July 1969 the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 
635-212 for unfitness and that he be furnished an undesirable discharge.  He cited the applicant’s habits and traits of character manifested by repeated commission of major and minor offenses and that the applicant would not respond to corrective action.  The commander also cited acts of misconduct which resulted in the applicant's conviction by special court-martial. 

10.  On 20 July 1969 the intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness and that he be furnished an Undesirable Discharge Certificate.

11.  The appropriate authority approved the recommendation on 27 July 1969 and directed that the applicant be furnished an Undesirable Discharge Certificate.

12.  The applicant was discharged on 31 July 1969 with an undesirable discharge.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows that he was discharged under the provisions of Army Regulation 635-212.  This form further shows the applicant's character of service as under other than honorable conditions and that the applicant had 1 year, 6 months, and 21 days of total active service.

13.  On 18 March 1976, the applicant was awarded a clemency discharge pursuant to Presidential Proclamation 4313 dated 16 September 1974.  He was issued a DD Form 1953A (Clemency Discharge Certificate) along with a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) amending his DD Form 214.

14.  On 1 June 1982, the Army Discharge Review Board (ADRB) reviewed the applicant's military records and all other available evidence and denied the applicant's request for a change in the character of service and reason for discharge.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(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.  Paragraph 6a(4) of the regulation provided that members who have established a pattern for shirking were subject to separation for unfitness.


16.  Army Regulation 635-200, then in effect, 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.

17.  Army Regulation 635-200, then in effect, 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 so that he can obtain DVA medical benefits.

2.  The evidence of records pertaining to the applicant’s service includes five NJPs for various offenses and one special court-martial for being found sleeping upon his post as a sentry, disrespecting a superior noncommissioned officer in language, and failing to go to appointed place of duty.  The quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore the applicant is not entitled to an upgrade of his undesirable discharge.

3.  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.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits from another agency.  The applicant is advised to consult with his local DVA representatives to inquire about the eligibility for possible DVA benefits. 






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tap___  __ena___  __pms___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




							Thomas A. Pagan
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003445
SUFFIX

RECON

DATE BOARDED
20070003445
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19690731
DISCHARGE AUTHORITY
AR 635-212 
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.