IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090005386 


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 discharge under other than honorable conditions be upgraded to a general discharge so that he is eligible for a Department of Veterans Affairs home loan.

2.  The applicant states that per the Department of Veterans Affairs his DD Form 214 has to show a general discharge and identification numbers for credit at Kansas Wesleyan University.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 records show that he enlisted and entered active duty as a Regular Army Soldier on 27 February 1962 for a period of 3 years.  The applicant successfully completed basic and advanced individual training and was awarded military occupational specialty 464.19 (Parachute Rigger).  The highest grade he attained was pay grade E-3.

3.  On 8 April 1963, the applicant received nonjudicial punishment for being disorderly at a drivein restaurant and for lending his automobile to a person without a valid operator's license.  His punishment was a forfeiture of $15.00 pay, a reduction to pay grade E-2, and 7 days of extra duty.

4.  On 17 September 1963, the applicant received nonjudicial punishment for acting with disrespect toward an acting corporal who was his superior by saying to him, "Jail me," or words to that effect.  His imposed punishment was 14 days of restriction and 14 days of extra duty to run concurrently.

5.  On 2 January 1964, the applicant left his appointed place of duty without proper authority.  His imposed punishment was a reduction to pay grade E-2, 14 days of restriction, and 14 days of extra duty to run concurrently.

6.  On or about 2 March 1964 to 5 March 1964, the applicant was reported for being absent without leave (AWOL).  On 6 March 1964, the applicant was confined by civil authorities in Grants, New Mexico, under suspicion of a violation of the Dyer Act and held until 5 April 1964.

7.  On 6 April 1964, the applicant was convicted of interstate transportation of a stolen motor vehicle and was placed on 2 years of probation without supervision as long as he remained in the military service.  He was released to military authorities at Sandia Air Force Base, New Mexico.

8.  On 10 April 1964, the applicant was released in transit with a direct order to return to his unit not later than 12 April 1964.

9.  On 12 April 1964, the applicant went AWOL and was dropped from the unit rolls as a deserter.

10.  On 7 August 1964, the applicant was picked up and delivered to the Albuquerque City Jail for violating the terms and conditions of his probation.  He was committed to the custody of the Attorney General for treatment and supervision until discharged by the Youth Correction Division of the Board of Parole.  On 19 August 1964, he was delivered to the Federal Correctional Institution in El Reno, Oklahoma.

11.  On 11 January 1965, while the applicant was in civil confinement, the acting unit commander initiated action to administratively separate him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)).  He recommended that the applicant be discharged and receive an Undesirable Discharge Certificate.

12.  On 29 January 1965, the separation authority approved the recommendation for discharge and directed the applicant be discharged from military service by reason of civil conviction and issued an Undesirable Discharge Certificate.  He directed that the applicant be reduced to the lowest enlisted grade.

13.  On 5 February 1965, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-206 under other than honorable conditions and issued an Undesirable Discharge Certificate.  He completed 1 year and 2 days of creditable active military service.

14.  On 26 March 1969, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  His request was denied.

15.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel who had committed an act or acts of misconduct (i.e., fraudulent entry, conviction by civil authorities, absence without leave, and desertion).  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 is the basic regulation that governs the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  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.  There is no evidence and the applicant has not provided any evidence that shows that the discharge he received was inequitable or unjust.

2.  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.  The ABCMR will grant any changes if it is determined that the characterization of service or the reason for discharge were improper or inequitable.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

5.  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 this 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)                                         AR20090005386





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ABCMR Record of Proceedings (cont)                                         AR20090005386



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