IN THE CASE OF:	  

		BOARD DATE:	        23 December 2008

		DOCKET NUMBER:  AR20080015236 


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 general discharge be upgraded to honorable.

2.  The applicant states, in effect, that an honorable discharge will allow him to continue to receive benefits from the state of New Hampshire.  He claims that he is a 100-percent permanently disabled service-connected Vietnam era veteran and he deserves the benefits that honorably discharged veterans are currently receiving with the same disability rating.

3.  The applicant provides a letter, dated 23 October 2007, from the Department of Veterans Affairs (DVA); a letter, dated 24 July 2008, from the Town of Londonderry, New Hampshire; a document titled, "Clarification RSA 72L28 Veterans’ Tax Credit"; and a copy of his DD Form 214 (Report of Separation from Active Duty).  

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 13 January 1975 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).  He arrived in Korea on 28 June 1975.

3.  On 25 March 1976, while in Korea, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, restriction, and extra duty.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 3 May 1976, shows that nonjudicial punishment was imposed against the applicant while in Korea for at least one specification of using disrespectful language and one specification of possessing an unauthorized military pass.  The continuation sheet is not available.

5.  On 2 July 1976, while in Korea, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

6.  The applicant departed Korea on 23 July 1976.

7.  On 7 March 1977, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5, paragraph 5-37, under the Expeditious Discharge Program.  The unit commander based his recommendation for separation on the applicant’s continued slovenly appearance, his stated indifference toward military service and self improvement, and his lack of promotion potential.

8.  On 10 March 1977, the applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement on his behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge and that he had been provided an opportunity to consult with counsel.

9.  On 15 March 1977, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.  Accordingly, the applicant was discharged on 24 March 1977 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served 2 years, 2 months, and 12 days of total active service.

10.  In support of his claim, the applicant provided a letter, dated 23 October 2007, from the DVA which states that he is permanently and totally disabled due to a service connect disability incurred during his honorable military service during the Vietnam era.

11.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

13.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining New Hampshire or Department of Veterans Affairs benefits.

2.  The applicant's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.  In addition, he acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge.

3.  The applicant's record of service included three nonjudicial punishments.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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.




      __________xxx_______________
                 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)                                         AR20080015236



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ABCMR Record of Proceedings (cont)                                         AR20080015236



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