DOCKET NUMBER:  AR20090001739 


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, an upgrade of his undesirable discharge (UD) to an honorable discharge. 

2.  The applicant states, in effect, that he was discharged under an early release agreement with a general, under honorable conditions discharge; however, an UD is indicated on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also states, in effect, that this mistake hinders him from addressing health benefits through the Department of Veterans Affairs (VA) for a chronic illness contracted in Vietnam.  He only discovered the error when he submitted a disability claim to the VA.

3.  In support of his application, the applicant provides a copy of his DD Form 214, a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), and his Progress Notes from his primary care patient visit on 20 November 2008.   

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 records show he enlisted in the Regular Army, in pay grade E-1, on 30 September 1968, for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was advanced to pay grade E-3 on 18 May 1969.

3.  On 31 July 1969, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from 14 July to 25 July 1969.  The punishment included a reduction to pay grade E-2, 14 days restriction, and 14 days extra duty.

4.  On 8 August 1969, the applicant was punished under Article 15, UCMJ, for being disrespectful in language towards his superior noncommissioned officer (NCO) on 1 August 1969.  The punishment included a reduction to pay grade E-1, a forfeiture of $20.00 pay per month for one month, and 14 days restriction and extra duty to be effective on 14 August 1969.

5.  The applicant was advanced to pay grade E-3 on 29 November 1969 and promoted to pay grade E-4 on 8 January 1970.

6.  On 22 May 1970, the applicant was punished under Article 15, UCMJ, for assaulting a fellow Soldier, by striking him with his fists on 19 May 1970.  The punishment included a reduction to pay grade E-3 (suspended for 60 days), a forfeiture of $83.00 pay per month for two months, and extra duty for 30 days.  

7.  The applicant served in Vietnam from 23 September 1970 to 30 January 1971.

8.  On 11 December 1970, the applicant was convicted by a special court-martial of one specification of assaulting an NCO on 30 November 1970 by grabbing him by the shirt and attempting to strike him with his fist.  The applicant was sentenced to a forfeiture of $50.00 pay per month for two months.  The sentence was adjudged on 11 December 1970 and approved on 17 December 1970.


9.  The applicant was reduced to pay grade E-1 on 22 January 1971 and discharged on 1 February 1971 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph
7-30b(3), by reason of unfitness.

10.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a duly constituted DD Form 214, which shows that he was discharged on 1 February 1971, in pay grade E-1, under the provisions of Army Regulation 635-212.  Item 13a (Character of Service) of the applicant's DD form 214 shows the entry "honorable conditions."  Item 13b (Type of Certificate Issued) shows the entry "DD Form 258A" [Undesirable Discharge Certificate].  He was credited with 2 years and 4 months of total active service.

11.  The applicant submits a completed DD Form 293; however, the DD Form 293 was not submitted to the Army Discharge Review Board (ADRB) because it was not within the ADRB's 15-year statute of limitations.  There is no evidence the applicant had previously applied for a discharge upgrade through the ADRB.

12.  The applicant also submits copies of his progress notes from his primary care patient visit to the Shreveport VA Medical Center on 20 November 2008.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who are found to be unfit or unsuitable for further military service.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate for individuals separated by reason of unfitness.

14.  Army Regulation 635-212 also stated that when an individual was to be discharged as unfit with an undesirable discharge, the convening authority would direct his immediate reduction to the lowest enlisted grade.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides that an honorable discharge is a separation with honor. 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.



16.  Army Regulation 635-200, paragraph 3-7b, also 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 evidence of record shows that the applicant was punished under Article 15 for absenting himself from his unit, assaulting a fellow Soldier, and being disrespectful in language toward an NCO.  He was also convicted by a special court-martial of assaulting an NCO.  The evidence also shows that he was reduced to pay grade E-1 on 22 January 1971 as a result of a discharge for unfitness under the provisions of Army Regulation 635-212, another clear indication that he had been issued an undesirable discharge.  Notwithstanding the entry on his DD Form that showed his character of service as under honorable conditions, from the preponderance of the evidence in this case it is clear the applicant knew and understood the reasons for his discharge and the type of discharge he would be receiving.

2.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of an upgrade of his undesirable discharge.  The applicant has provided insufficient evidence to show that his discharge was unjust or that he deserves an honorable or a general discharge now.  He also has not provided evidence sufficient to mitigate the character of his discharge.  

3.  The applicant's desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social service organizations is acknowledged.  However, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

4.  In the absence of evidence to the contrary, Government regularity is presumed. It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

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

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090001739



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ABCMR Record of Proceedings (cont)                                         AR20090001739



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