IN THE CASE OF:
BOARD DATE: 30 September 2008
DOCKET NUMBER: AR20080012245
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 to a general discharge.
2. The applicant states, in effect, that when he was discharged he was told that his discharge would be upgraded to a general discharge if he had a clean record for one or two years. He contends that he never received any clarification and that he lost his military records in a house fire. He further states that he was recommended for discharge after a mental health evaluation, that he was not disloyal to his country, and that he needs his discharge upgraded to receive medical benefits from the Department of Veterans Affairs (DVA).
3. The applicant provides no additional evidence in support of his application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted on 21 September 1970. He successfully completed basic combat training. While in advanced individual training, on
23 March 1971, nonjudicial punishment was imposed against the applicant for two specifications of absenting himself from his appointed place of duty.
3. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, on 19 August 1971, a board of officers convened to determine whether the applicant should be discharged from the service. The board found that the applicant was undesirable for further retention in the military service because of habitual shirking and recommended that he be discharged from the service because of unfitness with the issuance of an undesirable discharge. On 26 August 1971, the separation authority approved the findings and recommendation.
4. The applicants DD Form 214 (Report of Transfer or Discharge) shows that he was discharged on 7 September 1971 with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to habitual shirking. He had served 11 months and 14 days of creditable active service with 2 days of lost time.
5. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
6. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(4) of the regulation provided that members involved in an established pattern of shirking were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
7. 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 Soldiers separation specifically allows such characterization.
8. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
DISCUSSION AND CONCLUSIONS:
1. A discharge upgrade is not automatic.
2. Good post-service conduct alone is normally not a basis for upgrading a discharge.
3. A discharge is not upgraded for the purpose of obtaining DVA benefits.
4. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request.
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) AR20080012245
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ABCMR Record of Proceedings (cont) AR20080012245
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