IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090000231 


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, that his undesirable discharge be upgraded.

2.  The applicant states he was told he would receive a general discharge.  He also states time has gone by since his discharge.  He states he is disabled and could use benefits provided by the Department of Veterans Affairs (VA).

3.  The applicant provides no additional evidence or official documentation 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 military personnel records show he enlisted in the Regular Army on 23 June 1972 for a period of 2 years.  He did not complete advanced individual training and was not awarded a military occupational specialty.

3.  On 31 August 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.

4.  On 6 February 1973, the applicant pled guilty and was found guilty by a special court-martial of being absent without leave from 11 December 1972 to 
9 January 1973.  His sentence consisted of confinement for 30 days and forfeiture of $200 per month for 3 months.  The convening authority approved the sentence on 15 February 1973.

5.  On 16 March 1973, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200 for unfitness.
He waived consideration of his case by a board officers and personal appearance before such a board.  The applicant stated that he was not submitting statements in his own behalf and that he waived representation by counsel.  

6.  The applicant also acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws, and that he may expect to encounter substantial prejudice in civilian life.

7.  On 16 March 1973, the applicant's commander recommended him for discharge under the provisions of Chapter 13 of Army	Regulation 635-200 by reason of unfitness due to his frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  The commander stated that regardless of intensive counseling efforts by leadership cadre of two Brigade units, the applicant had consistently misbehaved, shirked his duties, and disregarded all counseling and corrective efforts.  The commander stated that the applicant's expressed intent to shirk future service was evidence that further efforts would be unsuccessful.  The commander also recommended that the requirements for further counseling and rehabilitation be waived.

8.  On 23 March 1973, the appropriate authority waived rehabilitative reassignment, directed that the applicant be discharged under the provisions of Chapter 13 of Army Regulation 635-200, and that he be furnished an Undesirable Discharge Certificate.
9.  On 2 April 1973, the applicant was discharged under the provisions of 
Chapter 13 of Army Regulation 635-200 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. He was issued an Undesirable Discharge Certificate.  He had completed 
7 months and 13 days active service that was characterized as under conditions other than honorable.  He had 56 days of time lost.  

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 17 December 1973, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a, then in effect, provided for discharge of individuals for unfitness.  Among the reasons for unfitness were frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  This regulation further provided that an individual separated for unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

12.  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 was told he would receive a general discharge.  However, there is no supporting evidence to support his contention.  

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

5.  The ABCMR does not correct records based on the passage of time or solely for the purpose of establishing eligibility for veteran's benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for disabilities incurred while in the service should be addressed to the VA.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090000231





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000231



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1