IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014217 


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 (UD) be upgraded to an honorable discharge.

2.  The applicant states that he feels his discharge should be upgraded because of his health and the fact that he was exposed to chemicals that affected his mental capacity.  He also states that he cannot file for service-connected benefits because of the type of discharge he received.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 he enlisted in the Regular Army in pay grade E-1 on 29 February 1968 for 2 years.  He completed training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was honorably released from active duty in pay grade E-3 on 21 February 1970 as an overseas returnee and was transferred to the U.S. Army Reserve Control Group (Annual Training).

3.  The applicant enlisted in the Regular Army in pay grade E-3 on 18 February 1971 for 4 years.  He completed training and was awarded MOS 76Y (Unit/Organization Supply Specialist).  He served in Korea from 8 April 1969 to 21 February 1970.  He was promoted to pay grade E-4 on 24 June 1971.

4.  A DD Form 493 (Extract of Military Records of Previous Convictions), dated 10 October 1973, shows the applicant was convicted by special court-martial of one specification each of failing to go to his appointed place of duty, being disrespectful to his superior commissioned officer, disobeying a lawful order from a noncommissioned officer, using provoking words, and two specifications of assault.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of $200.00 pay per month for 4 months, and a reduction to pay grade E-1.  He was reduced to pay grade E-1 on 4 August 1973.  His record did not contain a copy of the court-martial orders.

5.  On 11 October 1973, the applicant's company commander recommended he be discharged for unsuitability under paragraph 13-5, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), because of frequent incidents of a discreditable nature.  The company commander stated that the applicant was sent to the brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, the applicant's actions since arrival precluded accomplishment of the objective as evidenced by his resume [sic] of behavior, attitude, and ability.  The company commander also stated that the applicant demonstrated a disregard for military authority and indicated no desire for returning to duty.  In his opinion, the applicant possessed the mental and physical ability necessary to be an effective Soldier, but his present attitude and his failure to react constructively to the rehabilitation program was clearly indicative that he should not be retained in the service.

6.  On 11 October 1973, the applicant acknowledged the proposed separation action under the provisions of chapter 13, Army Regulation 635-200, after consulting with counsel.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged that he understood that he might be issued a general under honorable conditions discharge.  He further acknowledged that he could be discharged under other than honorable conditions and furnished a UD, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.

7.  On 11 October 1973, the applicant's battalion commander recommended approval of the applicant's separation.

8.  On 15 October 1973, the appropriate authority approved the applicant's discharge and specified the issuance of a UD Certificate.

9.  The applicant was discharged from active duty in pay grade E-1 on 17 October 1973 under the provisions of Army Regulation 635-200, chapter 13, and issued a UD Certificate.  He was credited with 2 years, 5 months, and 16 days of net active service and 1 year, 11 months, and 23 days of other service.

10.  On 25 March 1982, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

12.  Army Regulation 635-200, paragraph 3-7a, also provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

2.  The applicant's contentions have been noted; however, his records show he was convicted by special court-martial of failing to go to his appointed place of duty, being disrespectful to his superior commissioned officer, disobeying a lawful order from a noncommissioned officer, using provoking words, and two specifications of assault, resulting in his confinement and reduction in grade.  His company commander stated, in effect, that his behavior, attitude, and ability precluded the accomplishment of him becoming a well-trained Solider with an improved attitude and motivation.  The company commander also stated that  that he had demonstrated a disregard for military authority and possessed the mental and physical ability necessary to be an effective Soldier, but his present attitude and his failure to react constructively to the rehabilitation program was clearly indicative that he should not be retained in the service.

3.  The applicant has provided no evidence to show that his discharge was unfair or unjust.  The applicant's unsatisfactory performance and repeated incidents of a discreditable nature diminished the quality of his service below that meriting a fully honorable discharge.  The evidence of record confirms his discharge processing was accomplished in accordance with applicable regulations and the characterization of his service and the reasons were therefore appropriate considering all the facts of the case.

4.  The applicant desires to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the Department of Veterans Affairs and/or other Federal and State social services organizations.  However, the ABCMR does not grant relief solely for the purpose of making an applicant eligible for benefits administered by these agencies.  Every case is individually decided based upon its merits when an applicant requests an upgrade of his or her discharge.

5.  In view of the foregoing, 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)                                         AR20090014217



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ABCMR Record of Proceedings (cont)                                         AR20090014217



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