RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	14 November 2007  
	DOCKET NUMBER:  AR20070008344 


	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.


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	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 a general, under honorable conditions, discharge.

2.  The applicant states, in effect, he is being denied VA (Department of Veterans Affairs) benefits as a result of his discharge.  He adds that he only lacked six months of completion of his enlistment and he was punished for his behavior.

3.  In support of his request, the applicant submits a copy of his DD Form 214, Report of Separation from Active Duty, and a copy of a letter, dated 13 March 2007, he received from the VA which notified him he had been discharged from the military service under conditions which constituted a bar to payment of VA benefits.

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 evidence shows the applicant enlisted in the Regular Army on 23 February 1972.  The applicant successfully completed basic combat training and his advanced individual training at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS) 95B, (Military Policeman).  On 20 May 1975, he was reclassified to the MOS 11B, the MOS he held on the date of his discharge.

3.  The applicant was honorably discharged on 23 October 1972, for the purpose of immediately reenlisting.  The evidence shows the applicant reenlisted for a period of four years, with a projected expiration of term of service date of 22 October 1976.

4.  On 13 December 1972, the applicant received non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for sleeping on his post after being posted as a sentinel, on 7 December 1972, and for disobeying company motor pool guard special instructions, on the same date. The imposed punishment was forfeiture of $50.00, suspended for one month; performance of 2 hours extra duty, for 7 days; and restriction to the company area, for 7 days.  The applicant did not appeal the punishment.

5.  On 26 January 1973, the applicant received non-judicial punishment, under the provisions of Article 15, of the UCMJ, for failing to obeying a lawfully given order from his superior noncommissioned officer, at two separate times, on 22 January 1973.  The imposed punishment was extra duty for 7 days, and restriction to the company area for 7 days; forfeiture of $50.00, per month for one month, and a reduction to the rank and pay grade, Private, E-2.  The applicant appealed the punishment.  On 20 February 1973, the first alleged violation of willfully disobeying a lawfully given order from his superior noncommissioned officer, of two separate times, on 22 January 1973, was dismissed.  The forfeiture of $50.00 was mitigated to a forfeiture of $25.00, suspended for 120 days, and the reduction to the rank/pay grade, Private/E-2, was also suspended for 120 days.

6.  Item 18 (Appointments and Reductions), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows the applicant was reduced to the rank and pay grade, Private, E-2, on 27 September 1973.  He was promoted to the rank and pay grade, Private First Class, E-3, on 27 February 1974.  A copy of the Article 15 the applicant received on this date is not available in his service personnel records; however, a copy of Unit Orders Number 63, 526th Military Police Company (Service), dated 4 October 1973 are.  In addition to the reduction to the rank and pay grade, Private, E-2, the applicant received a forfeiture of $80.00, per month, for a period of one month.

7.  The evidence shows the applicant was promoted to the rank/pay grade, Specialist Four/E-4 on 27 February 1974.  This would be the highest rank/pay grade he would hold while in the Army.

8.  On 23 January 1975, the applicant received non-judicial punishment under the provisions of Article 15, of the UCMJ, for failing to go to his appointed place of duty on 20 January 1975.  The imposed punishment was a reduction to the rank and pay grade, Private First Class, E-3, suspended for 3 months.  The applicant did not appeal the punishment.

9.  On 3 March 1975, the suspension of the punishment of reduction to the rank and pay grade, Private First Class, E-3, imposed against the applicant on 23 January 1975 was vacated.  The unexecuted portion of the punishment was ordered executed.

10.  On 16 June 1975, the applicant received non-judicial punishment under the provisions of Article 15, of the UCMJ, for failing to go to his appointed place of duty on 6 and 9 June 1975.  The imposed punishment was a reduction to rank and pay grade, Private, E-2, forfeiture of $90.00 ($45.00 suspended for 30 days), and restriction to the company area and extra duty for 14 days.  The applicant did not appeal the punishment.

11.  On 9 September 1975, the applicant received non-judicial punishment under the provisions of Article 15, of the UCMJ, for failing to go to his appointed place of duty on 9 September 1975.  The imposed punishment was a reduction to pay grade E-1, restriction to the company area, and extra duty for 14 days.  The applicant did not appeal the punishment.

12.  On 20 June 1975, the applicant underwent a separation physical examination. The applicant was found medically qualified for separation.  On the same date, the applicant also underwent a mental status evaluation.  Upon evaluation, the applicant's behavior was found to be normal.  He was found to be fully alert, fully oriented, to have a level mood and a clear thinking process, with normal thought content.  His memory was found to be good.  He was found to have no significant mental illness, was found to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  The applicant was found to meet retention standards prescribed in Army Regulation (AR) 40-501, chapter 3.

13.  A copy of the applicant's administrative discharge "packet" is not available in his service personnel record; however, the evidence shows the applicant was discharged in the rank and pay grade of Private, E-1, on 9 July 1975, under the provisions of Army Regulation (AR) 635-200, Chapter 13, for unfitness – frequent involvement of a discreditable nature with authorities.  On the date of his discharge, the applicant had completed 3 years, 6 months, and 1 day total active military service, with no days lost.

14.  Item 26 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, Certificate of Release 

or Discharge from Active Duty, shows that he was awarded the National Defense Service Medal; the Expert Marksmanship Qualification Badge, with Automatic Rifle Bar (M-16 Rifle); and the Marksman Marksmanship Qualification Badge, with Pistol Bar (.45 Caliber Pistol).  The record contains no documentary evidence of acts of valor or achievement which warrant special recognition.

15.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

16.  AR 635-200 provides the authority for the separation of enlisted personnel.  Chapter 13 establishes procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or a general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.  The type of discharge to be issued will be directed by the convening authority.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant’s administrative discharge was accomplished in compliance with applicable regulations, with no procedural errors which would tend to jeopardize his rights.  In the absence of the applicant's administrative discharge "packet," Government presumption of regularity in the discharge process must be assumed.

2.  The applicant alleged and he submitted a letter he received from the VA which shows he is being denied service-related benefits because he was discharged from military service under conditions which constituted a bar to payment of VA benefits.

3.  The applicant's desire to have his undesirable discharge upgraded to enable him to make application to the Veterans Administration (VA) to qualify for medical benefits is acknowledged; however, the Board does not grant relief solely for the purpose of allowing an applicant to qualify for benefits administered by the VA or other Army agencies.

4.  The evidence shows the applicant was a disciplinary problem.  His violations of the UCMJ resulted in forfeitures of pay, reductions in rank and pay grade, multiple periods of his having to perform extra duty, and multiple periods of his restriction to his company area.  The imposed punishments did not have a rehabilitating effect on the applicant.  He continued to behave in the same manner until he was discharged from military service, with less than an honorable discharge.

5.  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 an upgrade of his undesirable discharge.  His service was not sufficiently meritorious to now warrant an upgrade of his discharge to a general, under honorable conditions discharge.

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  ___x___  __x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____x_________
          CHAIRPERSON



INDEX

CASE ID
AR20070008344
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19750923
DISCHARGE AUTHORITY
AR 635-200, chapter 13 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
144.0133
3.
144.0143
4.

5.

6.