IN THE CASE OF:	  

		BOARD DATE: 	        9 September 2008

		DOCKET NUMBER:  AR20080008867 


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 that his undesirable discharge be upgraded.

2.  The applicant states, in effect, that he would like to have his discharge upgraded to be eligible for veteran benefits. 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with the period ending 24 December 1974; a DA Form 3322-R-1 (Report of Mental Status Evaluation), dated 2 December 1974; 12 pages of military medical documents; and a DA Form 20 (Enlisted Qualification Record) prepared on 
31 May 1973.

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 enlisted in the Regular Army on 25 August 1972.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 94B (Cook).

3.  A DA Form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment (NJP) under Article 15 on 3 August 1973.  His punishment consisted of forfeiture of $50.00, 14 days restriction, 14 days extra duty (suspended for 30 days) and reduction to E-1.  The reason for the Article 15 is unknown.

4.  On 27 September 1974, the applicant was convicted, by a special court-martial of stealing a television, property of the German railroad.  His sentence consisted of a reduction to the grade of Private (PVT)/E-1, a forfeiture of $215.00 pay per month for two months, and confinement at hard labor for 45 days. 

5.  The applicant's record reveals he received disciplinary counseling while in confinement at the U.S. Army Retraining Brigade, Fort Riley, Kansas on the following dates:  30 September 1974 for violation of facility policy; 3 November 1974 for being unprepared for inspection; 7 November 1974 for failing to shave, for failing to get out of bed, and for unsatisfactory behavior; 12 November 1974 for disobeying an order; 13 November 1974 for lack of motivation; 21 November 1974 for breaking restriction and unsatisfactory behavior; and 26 November 1974 for failing to repair. 

6.  On 2 December 1974, the applicant underwent a mental status evaluation by a military medical psychiatrist who diagnosed the applicant with depressive neurosis, mild.  The military medical psychiatrist determined that the applicant could distinguish right from wrong and adhere to the right, that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels, and that the applicant had the mental capacity to understand and participate in board proceedings.  

7.  On 5 December 1974, the applicant’s commander signed an elimination packet and a waiver of rehabilitative transfer on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unfitness.  The reason cited by the commander was the applicant had received one court-martial and two Article 15s.  The applicant was sent to the retraining Brigade for the purpose of receiving correctional training and had showed little desire for returning to duty due to his behavior, attitude, and ability.  



8.  On 5 December 1974, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of chapter 13 of Army Regulation 635-200.  The applicant requested counsel, requested to be heard by a board of officers, and declined to submit a statement on his own behalf.

9.  On 17 December 1974, a board of officers was held and the board members recommended the applicant be eliminated from the service for unfitness with issuance of an undesirable discharge certificate.

10.  On 18 December 1974, the appropriate authority approved the recommendation and directed the applicant receive an Undesirable Discharge Certificate under the provisions of chapter 13 of Army Regulation 635-200 for unfitness.  On 24 December 1974, he was separated from the service after completing 2 years, 2 months, and 26 days of creditable active service with 
34 days lost time due to confinement.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 31 May 1977, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB voted that the applicant's discharge was proper and equitable.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1), then in effect, contained the policy and outlined the procedures for separating individuals for unfitness when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

13.  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 (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.




14.  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 he would like to have his discharge upgraded to be eligible for veterans benefits.  However, the ABCMR does not correct records solely for the purpose of obtaining eligibility for benefits.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records indicate that he received two Article 15s, that he was convicted by a special court-martial, that he had numerous negative counselings, and that he was confined by military authorities.  The applicant had completed only 2 years, 2 months, and 26 days of active creditable service with a total of 
34 lost days due to confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.




      _______ xxxx_______   ___
               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)                                         AR20080008867





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ABCMR Record of Proceedings (cont)                                         AR20080008867



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