IN THE CASE OF:	  

		BOARD DATE:	        15 September 2009

		DOCKET NUMBER:  AR20090005987 


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 to an honorable discharge.

2.  The applicant states, in effect, his discharge should have been automatically upgraded.  He adds that he is 66 years old and is having difficulty paying his medical bills.

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 was inducted into the U.S. Army on 14 January 1965 and he completed basic combat training.  The applicant failed to complete advanced individual training to qualify for award of a military occupational specialty.

3.  On 2 June 1966, the applicant was tried by a special court-martial.  He pled guilty to the charge and specification of being absent without leave (AWOL) from on or about 6 September 1965 to on or about 18 March 1966.  The approved sentence provided for confinement at hard labor for five months (suspended for 
5 months) and a forfeiture of $20.00 pay for 5 months.  (No previous convictions considered.)

4.  On 16 September 1966, the applicant was tried by a special court-martial.  He pled guilty to the charge and specification of being AWOL from on or about
21 July to 28 August 1966.  The approved sentence provided for a reprimand.  (One previous conviction considered.)

5.  On 17 November 1966, the applicant was tried by a special court-martial.  He pled guilty to the charge and specification of being AWOL from on or about
3 October to 3 November 1966.  The approved sentence provided for confinement at hard labor for 2 months, a forfeiture of $30.00 pay for 2 months (suspended until 16 January 1967), and reduction to the grade of private (E-1).  

6.  On 6 January 1967, the applicant was counseled by his commander on his misconduct and rehabilitation, and the applicant indicated no desire to return to duty.  Accordingly, the commander initiated separation action on the applicant under the provisions of Army Regulation 635-212 (Personnel Separations) for unfitness.  A neuropsychiatric evaluation shows the applicant was diagnosed with passive-aggressive personality disorder.  In the psychiatrist's opinion, the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  There was no mental disease or defect sufficient to warrant disposition through medical channels.

7.  On 30 January 1967, the applicant consulted with counsel and waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also indicated that he would not submit a statement in his own behalf.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an undesirable discharge was issued to him.  He also acknowledged he understood that he could be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of an undesirable discharge.

8.  On 1 February 1967, the separation authority waived further counseling and rehabilitation, approved the discharge under the provisions of Army Regulation 635-212 for unfitness, and directed that a DD Form 258A (Undesirable Discharge Certificate) be issued.

9.  The applicant was discharged accordingly on 10 February 1967.  He had completed 8 months and 4 days of net active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

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.  The applicant contends that his discharge should be automatically upgraded because he is 66 years old and he is having difficulty paying his medical bills.

2.  Prior to his discharge, the applicant was advised that an undesirable discharge could deprive him of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life if issued an undesirable discharge.  The applicant indicated that he understood these facts.  
3.  There is no evidence the applicant was advised that his undesirable discharge would automatically be changed to a general discharge under honorable conditions or an honorable discharge.  Moreover, the U.S. Army does not upgrade a discharge solely to enhance a Soldier’s eligibility for Government benefits.

4.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  It is determined that all requirements of law and regulation were met, and the applicant’s rights were fully protected throughout the separation process.  The applicant was appropriately issued an undesirable discharge and he has not provided any evidence sufficient to support upgrading his discharge

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.  Therefore, there is no justification 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)                                         AR20090005987



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ABCMR Record of Proceedings (cont)                                         AR20090005987



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