IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080007018 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his general discharge to an honorable discharge. 

2.  The applicant states, in effect, that he was 18 years old and was not given enough time to adjust to military life.  He also states that he was an only son and was sent to Vietnam after 4 months of training.  He further states that he was denied eligibility by the Illinois Student Assistance Commission for the Illinois Veteran Grant.  He did not know that Illinois required a veteran to have an honorable discharge to be considered eligible for a grant because he received benefits under the Federal Government.  In effect, he needs his discharge upgraded to honorable to be eligible for this grant.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a letter from the Illinois Student Assistance Commission.

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 25 March 1969, for 3 years.  On the date of his enlistment in the RA, the applicant was one day shy of 18 years of age.  He completed basic and advanced training and was awarded military occupational specialty 12A, Pioneer.  He was advanced to pay grade E-2 on 25 July 1969.

3.  On 26 September 1969, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from 19 August to 4 September 1969.  The punishment included a reduction to pay grade E-1, a fine of $20.00, and 14 days restriction.

4.  The applicant served in Vietnam from 22 November 1969 to 25 March 1970.  

5.  On 23 December 1969, the applicant accepted punishment under Article 15, UCMJ, for willfully disobeying lawful orders from a superior noncommissioned officer and a warrant officer on 11 December 1969.  The punishment included a reduction to pay grade E-1; a forfeiture of $30.00 pay; 14 days extra duty and 14 days restriction; however, 12 days of the restriction was suspended.

6.  The applicant was reduced to pay grade E-1 on 23 December 1969.

7.  On 19 January 1970, the applicant accepted punishment under Article 15, UCMJ, for being disrespectful in language towards a superior noncommissioned officer and for disobeying the order of a noncommissioned officer on 15 January 1970.  The punishment included a reduction to pay grade E-1 and 14 days of extra duty.

8.  On 3 February 1970, the applicant accepted a Summarized Article 15, for assaulting a Vietnamese civilian with a stick on 31 January 1970.  

9.  On 4 March 1970, the applicant's unit commander recommended that he appear before a board of officers convened under the provisions of Army Regulation 635-212, to determine whether the applicant should be discharged before the expiration of his term of service.  The commander stated the recommendation was due to character and behavior disorders and because of the applicant's repeated demonstrated disregard and apathy toward good order and discipline.  

10.  A Report of Psychiatric Evaluation, dated 18 March 1970, shows the applicant underwent a psychiatric evaluation, performed by a medical doctor (MD), a psychiatrist, on that date.  The MD stated that the applicant was referred by the command for the purpose of potential incorporation in board proceedings. He opined that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The applicant was cleared for processing for separation under the provisions of Army Regulation 635-212.

11.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a letter, Subject:  Separation Under Army Regulation 635-212, which shows the applicant, after consulting with counsel, acknowledged the contemplated action to separate him for unsuitability under Army Regulation 635-212.  He waived his right to counsel and to have his case heard before a board of officers.  He also acknowledged that he understood that he might be issued a general discharge under honorable conditions.  He also elected not to submit a statement in his own behalf.

12.  On 23 March 1970, the appropriate authority approved the applicant's separation by reason of unsuitability and directed the issuance of a General Discharge Certificate.  

13.  The applicant's records also contain a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged on 27 March 1970, in pay grade E-1, under the provisions of Army Regulation 635-212.  He was furnished a general discharge.  He was credited with 1 year and 3 days of total active service.

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

15.  The applicant provides a copy of his letter from the Illinois Student Assistance Commission, dated 12 December 2007, wherein he was advised that one of the requirements to become a qualified applicant for the Illinois Student Assistance Commission administered Illinois Veteran Grant was the applicant must have received an honorable discharge for each period of Federal active duty service.  His DD Form 214, dated 27 March 1970, indicated that his character of service was "under honorable conditions" which is not the same as honorable.  Since he did not meet all program requirements to be a qualified applicant, his Illinois Veteran Grant eligibility was denied as of 17 October 2007.


16.  Army Regulation 635-212 (Enlisted Separations), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

17.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge is a separation with honor.  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.

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 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 contentions have been noted; however, it is apparent that the applicant's discharge was based on his overall performance during his period of service from 25 March 1969 to 27 March 1970.  The applicant's commander stated that the applicant demonstrated disregard and apathy towards good order and discipline.  It appears the applicant made no attempt to adapt to military life. The applicant was almost 18 years old at the time of his enlistment in the Regular Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  The applicant has provided insufficient evidence to show that his discharge was unjust or that he deserves an honorable discharge now.  He also has not provided evidence sufficient to mitigate the character of his discharge.  In the absence of evidence to the contrary, the character of the discharge is commensurate with the applicant's overall record of military service. 

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.  


5.  The applicant's desire to have his discharge upgraded so that he can qualify for benefits administered by the State of Illinois is acknowledged; however, the Board does not grant relief solely for the purpose of qualifying an applicant for benefits administered by a State government.

6.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007018



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ABCMR Record of Proceedings (cont)                                         AR20080007018


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