DOCKET NUMBER:  AR20090002833 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge under honorable conditions and that his reentry eligibility (RE) code be changed from RE-4 to RE-2.

2.  The applicant states, in effect, that he served during the Vietnam era, leaving behind his sick elderly mother.  He now has two sons who are serving in the United States Navy, leaving behind their sick elderly father.  He also states, in effect, that he requests veterans benefits entitlements so he may continue to receive medical treatment under the Humanitarian Act at the Veteran Affairs Medical Center (VAMC) in Memphis, TN.

3.  The applicant provides a copy of his notice of award from the Social Security Administration, a copy of a page of his progress notes from the Memphis VAMC, and a copy of a Hartford Life Insurance Company Attending Physician's Statement of Continued Disability in support of this 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 was inducted into the Army of the United States on 20 February 1969 for a period of 3 years.  He completed the required training and was awarded military occupational specialty (MOS) 71B (Clerk Typist).  The highest rank he attained while serving on active duty was private first class/E-3.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he served in Germany from 11 July 1969 to 8 September 1970 and during this tour he was assigned to Headquarters and Headquarters Company performing duties in MOS 71B (Clerk Typist).

4.  On 15 March 1969, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order from a superior officer on or about 10 March 1969.  His imposed punishment was a forfeiture of $15.00 pay per month for 2 months.

5.  On 6 June 1969, the applicant accepted NJP for failure to report at the time prescribed to his appointed place of duty on or about 1 June 1969.  His imposed punishment included 14 days of restriction, 14 days of extra duty, and a forfeiture of $10.00 pay.

6.  Summary Court-Martial Order Number 7, Headquarters, 32d Signal Battalion, dated 15 April 1970, shows that on 6 December 1969 the applicant was convicted by a summary court martial of two specifications of failure to go at the time prescribed to his appointed place of duty on 17 October 1969.  He was sentenced to be reduced to private (E-1) and a forfeiture of $32.00 pay (both suspended).  The findings and the sentence were set aside and the charges were dismissed and these orders were rescinded.

7.  Special Court-Martial Order Number 8, Headquarters, 32d Signal Battalion, dated 8 June 1970, shows that on 22 May 1970 the applicant was convicted of one specification of failure to obey a lawful order by a superior noncommissioned officer.  This special court-martial order also shows that the applicant was convicted by a special court-martial of eight specifications of failure to go to his appointed place of duty and nine specifications of being AWOL.  He was sentenced to be reduced to private (E-1), forfeiture of $80.00 pay per month for 3 months, and confinement at hard labor for 2 months.

8.  On 26 June 1970, the applicant’s unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability).

9.  On 30 June 1970, the applicant underwent a psychiatric evaluation.  The examining psychiatrist found that he was able to distinguish right from wrong and cleared him for any administrative decision deemed appropriate by the command.

10.  On 11 July 1970, the applicant accepted NJP for being absent without leave (AWOL) on or about 9 July 1970.  His imposed punishment was forfeiture of $31.00 pay and 14 days of restriction.

11.  On 17 July 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  The applicant indicated that he would not be submitting a statement in his behalf.  He also acknowledged that he could receive a UOTHC discharge.

12.  On 18 July 1970, the unit commander recommended the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness.  The commander stated that this was based on his intentional absences without proper authority, his excessive failures to report to duty, and by his intentional shirking of his duties.

13.  On 14 August 1970, the separation authority approved the applicant’s discharge for unfitness and directed that the applicant receive an Undesirable Discharge Certificate.  On 9 September 1970, the applicant was discharged accordingly.

14.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant confirms that he was separated with a UOTHC discharge on 9 September 1970.  At the time of his discharge, he held the rank of private (E-1)  and had completed a total of 1 year, 5 months, and 12 days of creditable active military service with 38 days of lost time.  The DD Form 214 issued to him at the time confirms he was discharged under the provisions of Army Regulation 635-212 with a separation program number (SPN) code of "386" for "pattern of shirking" and an RE code of 4 (nonwaivable).

15.  The Army Discharge Review Board denied the applicant's request for an upgrade in 1984.
16.  The applicant submitted a copy of his notice of award from the Social Security Administration Retirement, Survivors, and Disability Insurance Department, dated 4 November 2007, which shows that he was entitled to monthly disability payments beginning in January 2008.

17.  The applicant submitted a copy of his Hartford Life Insurance Company Attending Physician's Statement of Continued Disability, dated 30 June 2008, which shows that he was diagnosed with a cerebrovascular accident [stroke], hypertension, dementia, and depression.

18.  The applicant submitted a copy of a page of his progress notes from the Memphis VAMC which shows he was treated in the emergency room on 17 December 2008.

19.  Army Regulation 635-212, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, 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 a UOTHC discharge certificate, except that an honorable or general discharge certificate may be awarded by the separation authority.

20.  Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes including RA RE codes.  RE-2, at the time, applied to persons not qualified for continued Army service, but the disqualification was waivable.  RE-4 applies to persons who are permanently disqualified for continued Army service.

21.  Army Regulation 635-5-1 (Separation Program Number Codes), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It identifies the SPN code of "386" as the appropriate code to assign enlisted Soldiers discharged for unfitness based on an established pattern of shirking.

22.  Army Regulation 635-200 (Personnel Separations), 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.

23.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge UOTHC is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his unfitness discharge, characterized as under conditions other than honorable, should be upgraded to a general under honorable conditions discharge and that his RE code should be changed to RE-2 so he could be eligible for veterans benefits because he served during the Vietnam era were carefully considered.

2.  The applicant was discharged by reason of unfitness based on a pattern on shirking.  He provided no evidence to show that the assignment of an RE-4 code at the time of his discharge was not administratively correct.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  As a result, the RE-4 code was and still is appropriate.

3.  The evidence of record shows that the applicant was tried and convicted by one summary court-martial, one special court-martial, and received three NJPs.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or general discharge.

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

6.  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.

7.  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)                                         AR20090002833



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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