IN THE CASE OF:	  

		BOARD DATE:	  	  4 December 2008

		DOCKET NUMBER:  AR20080014585 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that his problems were medical and not disciplinary in nature.  He further states that he was punished for being unable to perform his duties, which was not his fault.  He concludes by asking that he be granted an honorable discharge so he can apply for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 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 shows that he was inducted into the Army of the United States and entered active duty on 20 January 1970.  He was trained in, awarded, and served in military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic) and the highest rank he attained while serving on active duty was private (PV1)/E-1.  

3.  The applicant's military service records contain a copy of a DA Form 2627-1
(Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 April 1970.  This document shows that the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 5 April through 8 April 1970.  His imposed punishment was a forfeiture of $26.00 pay,
14 days extra duty, and 14 days restriction to the company area.

4.  The applicant's military service records contain a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 27 April 1970.  This document shows that the applicant was injured in an automobile accident on 
8 April 1970.  This document also shows that the applicant's duty status was AWOL from 5 April to 8 April 1970.  The applicant's military service records contain a copy of a DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status) which shows that the applicant's automobile accident was not in the line of duty and not due to his own misconduct. 

5.  The applicant's military service records contain a copy of a DA Form 2627-1, dated 27 May 1970.  This document shows the applicant accepted NJP for being AWOL from 24 May to 26 May 1970.  His imposed punishment was a forfeiture of $40.00 pay per month for a period of 2 months, 30 days extra duty, and 45 days restriction to the company area.

6.  The applicant’s record contains Summary Court-Martial Order Number 22, published by Garrison Troop Command, US. Army Training Center, Fort Polk, Louisiana, dated 28 September 1970 which shows he was charged for being AWOL from 3 July to 28 July 1970 and subsequently found guilty.  His imposed punishment was forfeiture of $92.00 pay per month for 1 month.

7.  The applicant’s military record contains several Standard Forms (SF) 600 (Chronological Records of Medical Care) which were made a part of his separation packet.  The last one dated 26 August 1970 shows the applicant continuously sought treatment for various medical problems. 

8.  On 12 September 1970, the applicant was psychiatrically examined by a psychiatrist at the Fort Polk Medical Department Activity, based on a referral by the installation Inspector General's Office. 

9.  On 14 September 1970, a Mental Hygiene Consultation Service Certificate was prepared based on the applicant's evaluation.  The psychiatrist stated that the applicant was well known to Mental Hygiene in that he had been seen on numerous occasions.  His complaints consisted of low back pain, stiff neck, and twitching of his eyes.  However, at no time was there evidence of mental illness.  The applicant was determined not to be mentally ill and was cleared psychiatrically for any action deemed appropriate by the command.  It was further recommended that the applicant be administratively separated under the provisions of Army Regulation 635-212 for unfitness.
 
10.  On 12 October 1970, the Commander, Special Processing Detachment,
notified the applicant of his intent to initiate discharge action against him under the provisions of Army Regulation 635-212 for unfitness.   The applicant was advised that he had the right to a hearing before a board of officers, to submit a written statement in his own behalf, to be represented by counsel, and that he may waive these rights in writing.

11.  The applicant’s military service records contain a copy of the applicant’s Statement of Waiver, dated 12 October 1970.  This document shows that the applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  This document also shows that the applicant waived consideration of his case by a board of officers, waived personal appearance before a board of officers, elected not to submit statements in his own behalf, and waived representation by counsel.  The applicant acknowledged that he may expect to encounter substantial prejudice in civilian life in the event he received a less than honorable discharge.  He also acknowledged that he understood he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life if he was issued a less than honorable discharge.  This document also shows that the applicant and the counseling officer certified the applicant’s Statement of Waiver by placing their signatures on the document. 

12.  On 12 October 1970, the Commander, Special Processing Detachment, Fort Polk, reviewed the applicant’s statement and choices pertaining to the rights available to him.  The commander stated that discharge was recommended 
because of the applicant’s record of frequent incidents of a discreditable nature 
with military authorities and an established pattern of shirking.  The commander also recommended the applicant be discharged for unfitness and issued an Undesirable Discharge Certificate.

13.  The separation authority approved the separation action for unfitness and directed issuance of an Undesirable Discharge Certificate.

14.  The applicant's military service records contain a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212, Separation Program Number (SPN) “28B,” with service characterized as under other than honorable conditions, and the issuance of a DD Form 258A (Undesirable Discharge Certificate), effective 5 November 1970.  At that time, the applicant was credited with completing 8 months and 13 days of creditable active military service and that he accrued 33 days of time lost due to being AWOL.

15.  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.

16.  Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that Soldiers discharged for frequent incidents of a discreditable nature based on a pattern of shirking will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge may be awarded by the separation authority.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), governs the policies and procedures for the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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’s contentions were carefully considered and found to be insufficient in merit. 

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20080014585



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1