IN THE CASE OF:	  

		BOARD DATE:	        20 August 2009

		DOCKET NUMBER:  AR20090008190 


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 conditions other than honorable be changed to a hardship discharge and upgraded to an honorable discharge.

2.  The applicant states, in effect, that he would like his discharge change to a hardship discharge so that he can receive Department of Veterans Affairs (VA) benefits.

3.  The applicant provides no additional documents 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 record shows that he was inducted into the Army of the United States and entered active duty on 18 January 1966.  He completed the required training and was awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver).  The highest grade he attained was pay grade E-3.  

3.  On 21 September 1966, the applicant was convicted by a Special Court- Martial (SPCM) of one specification of being absent without leave (AWOL) from 
24 August through 31 August 1966.  He was sentenced to confinement at hard labor for 3 months (suspended), a forfeiture of $60.00 pay per month for 
3 months and a reduction to pay grade E-1.

4.  On 15 August 1967, the applicant was convicted by a SPCM of one specification of being AWOL from 2 March through 2 August 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $60.00 pay per month for 6 months.  On 15 August 1967, the applicant was placed in pre-trial confinement.

5.  On 5 September 1967, the applicant was advised by the unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unfitness.  The stated reason for the recommendation was the applicant's inability to conform to military standards and discipline.  

6.  On the same day, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  The applicant did not submit a statement in his behalf.

7.  On 30 August 1967, the applicant was evaluated by a psychiatrist.  The applicant was diagnosed as having an emotionally unstable personality.  However, the applicant was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The applicant also met retention standards and there were no psychiatric disease or defect which warranted disposition through medical channels.  The psychiatrist recommended that the applicant be administratively separated from the military under the provisions of Army Regulation 635-212.

8.  On 14 September 1967, the commanding general directed the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate.  

9.  On 28 December 1967, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time confirms the applicant completed a total of 1 year, 
1 month, and 6 days of creditable active military service and 301 days of time lost due to being AWOL and in confinement.  

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

11.  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.

12.  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.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant was carefully considered; however, it was found to be insufficient in merit. 

2.  The evidence of record shows that, prior to his separation, the applicant was advised that his separation under other than honorable conditions may deprive him of many or all Army benefits; that he may be ineligible for many or all VA; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  In addition, the applicant indicated that he understood these facts.  In this regard, the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government benefits. 

3.  After carefully evaluating the evidence of record in this case, it is determined that the applicant’s discharge processing was conducted in accordance with law and regulations applicable at the time and that the character of his service is commensurate with his overall record of military service.  The evidence of record confirms the applicant’s rights were fully protected throughout the separation process.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met; and the rights of the applicant were fully protected throughout the separation process.  

5.  There is no evidence of record and the applicant provides no evidence to show why his discharge should be changed to a hardship discharge.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20090008190



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ABCMR Record of Proceedings (cont)                                         AR20090008190



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