IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090009675 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he has been working for the Department of Veterans Affairs (DVA) for the past 17 years; therefore, he is still serving his country.  He offers that he would like his discharge upgraded so he can go to school under the new GI Bill.

3.  The applicant provides a copy of his Standard Form (SF) 50 (Notification of Personnel Action) 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 he enlisted in the Regular Army (RA) and he entered active duty on 26 February 1974.

3.  The applicant's SF 50, dated 4 January 2009, shows that he works for the DVA in Los Angeles, CA.  His service computation date is listed as 3 November 1992.

4.  On 18 February 1975, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being absent without leave (AWOL) from 27 January 1975 to 
28 January 1975 and from 4 February 1975 to 5 February 1975.  His punishment consisted of a forfeiture of $75.00 pay per month for one month, reduction to the rank/grade of private (PV2)/E-2 (suspended for 60 days), and restriction and extra duty for 14 days.

5.  Headquarters, 75th Field Artillery Group, Fort Sill, OK, Special Court-Martial (SPCM) Order Number 9, dated 21 May 1975, shows that the applicant was found guilty of violation of Article 86 of  the UCMJ for being AWOL from 18 March 1975 to 11 April 1975.  His sentence consisted of reduction to the rank/grade of private (PV1)/E-1, confinement at hard labor for two months, and forfeiture of $100.00 pay per month for 3 months.

6.  On 9 September 1975, NJP was imposed against the applicant for being AWOL from 28 August 1975 to 7 September 1975.  His punishment consisted of a forfeiture of $100.00 pay per month for one month (suspended for 180 days) and 30 days correctional custody in the 1st Corps Correctional Custody Facility (suspended for 180 days).

7.  On 12 November 1975, NJP was imposed against the applicant for behaving himself with disrespect towards a superior commissioned officer.  His punishment consisted of extra duty for 14 days.

8.  On 12 January 1976, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $25.00 pay per month for one month and extra duty for 7 days.

9.  On 15 January 1976, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsuitability.


10.  The applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he requested consideration of his case by a board of officers, to personally appear before a board of officers, and to be represented by counsel.

11.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He further understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, that he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

12.  On 12 February 1976, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $50.00 pay for one month and extra duty for 7 days.

13.  On 26 February 1976, a board of officers was convened to determine whether or not the applicant should be discharged under the provisions of Army Regulation 635-200.  The applicant appeared before the board with counsel.  After considering the evidence, the board found that the applicant was undesirable for further retention in the military service because of unsuitability in that he displayed a continued pattern of AWOL and an apathetic attitude.  The board recommended that the applicant be discharged from the service because of unsuitability and issued a General Discharge Certificate.

14.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 17 March 1976 under the provisions of paragraph 
13-5a(1), Army Regulation 635-200 with a general, under honorable conditions discharge.  He had completed a total of 1 year, 9 months, and 23 days of total active service with 89 days of lost time.

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend 
effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that his discharge should be upgraded because of his 17 years of employment with the DVA which he believes shows his service to his country.  The applicant's faithful service with the DVA was considered; however, good post-service conduct alone is not a basis for upgrading a properly issued discharge.

2.  Additionally, the applicant contends that his discharge should be upgraded for the purpose of securing educational benefits.  There are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  The applicant has failed to provide such evidence.

3.  The applicant’s record of service included five NJP's, an SPCM conviction, and 89 days of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20090009675



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ABCMR Record of Proceedings (cont)                                         AR20090009675



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