IN THE CASE OF:	  

		BOARD DATE:	       10 September 2009

		DOCKET NUMBER:  AR20090006901 


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 honorable.

2.  The applicant states that he was told his character of service would be upgraded within 6 months of his release from duty.  He contends that he is homeless and needs to apply for Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 9 January 1973 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (light weapons infantryman).

3.  On 2 April 1973, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 2 April 1973 to 4 April 1973.  His punishment consisted of an oral reprimand.

4.  On 8 May 1973, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  On 26 October 1973, nonjudicial punishment was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

6.  On 11 November 1973, nonjudicial punishment was imposed against the applicant for absenting himself from his place of duty (guard duty).  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

7.  On 17 December 1973, a bar to reenlistment was imposed against the applicant.

8.  On 8 January 1974, nonjudicial punishment was imposed against the applicant for assault.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

9.  On 1 February 1974, nonjudicial punishment was imposed against the applicant for absenting himself from his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

10.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, on 6 February 1974, the applicant's unit commander recommended approval of his separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13.  He cited that in view of the applicant's record of military service, which included five Article 15's and his continued reticence to improve his behavior pattern, he did not believe that further rehabilitative efforts at this level of command were warranted or would produce the quality Soldier acceptable in the baseline force.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged with an undesirable discharge on 30 March 1974 under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent involvement in incidents of a discreditable nature.  He had served a total of 1 year, 2 months, and 19 days of creditable active service with 2 days of lost time.

12.  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.

13.  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.

14.  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.

15.  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.

16.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.
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)                                         AR20090006901



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ABCMR Record of Proceedings (cont)                                         AR20090006901



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