IN THE CASE OF:	  

		BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090004482 


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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he believes the majority of his service record is acceptable and that his discharge was based on one misunderstanding.  He contends that he is now disabled and would like to pursue Department of Veterans Affairs (DVA) benefits for his service.  

3.  The applicant provides no additional documentary evidence 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 enlisted in the Regular Army on 29 June 1973 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11H (infantry direct fire crewman).

3.  On 21 May 1974, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 14 May 1974 to 15 May 1974.  His punishment consisted of an oral reprimand, restriction (suspended), and extra duty (suspended). 

4.  On 31 March 1975, nonjudicial punishment was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended), restriction, and extra duty. 

5.  On 8 July 1975, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and dereliction of duty.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay (partially suspended), restriction, and extra duty.  On 23 July 1975, the suspension of the punishments of reduction to E-2 and a forfeiture of pay were vacated. 

6.  On 14 August 1975, a bar to reenlistment was imposed against the applicant.

7.  On 2 October 1975, contrary to his plea, the applicant was convicted by a summary court-martial of disobeying a lawful command.  He was sentenced to be reduced to E-1, a forfeiture of $225 pay for 1 month, and restriction for 
10 days.  On 20 October 1975, the convening authority approved the sentence.

8.  On 28 October 1975, nonjudicial punishment was imposed against the applicant for three specifications of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended), restriction, and extra duty. 

9.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged with an undesirable discharge on 9 December 1975 under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature.  He had served a total of 2 years, 5 months, and 5 days of creditable active service with 6 days of lost time (17 June 1975 to 22 June 1975).

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a) provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern for shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 

11.  There is no indication 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, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.  Although the applicant contends that the majority of his service record is acceptable and that his discharge was based on one misunderstanding, the available records show his record of service included a bar to reenlistment, four nonjudicial punishments, and one summary court-martial conviction.

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090004482



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ABCMR Record of Proceedings (cont)                                         AR20090004482



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