IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016700 


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.

2.  The applicant states he previously received education benefits with his discharge; however, now he is unable to receive medical services.

3.  The applicant provides no documentary evidence supporting his request. 

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 initially enlisted in Regular on 24 April 1968.  He served until he was honorably discharged 23 December 1968 for the purpose of immediate reenlistment.  This period of service equals 8 months.  He served in military occupational specialty (MOS) 64A (Light Truck Driver).

3.  On 24 December 1968, the applicant reenlisted for 4 years and he was awarded MOS 64B (Heavy Vehicle Driver).  His DA Form 20 (Enlisted Qualification Record) shows that private first class (PFC)/E-3 was the highest rank he attained while serving on active duty.  It also shows that he was reduced on four separate occasions for cause, the last of which he was reduced to private (PV1)/E-1 on 26 July 1972. 

4.  The applicant's DA Form 20 also shows, in item 44 (Time Lost Under Section 972, Title 10, USC), he accrued 493 days of lost time during four separate periods of AWOL and one period of confinement between 16 October 1970 and 20 July 1972.  

5.  The applicant’s record also reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five dates for the offenses indicated:

   a.  25 April 1970, for failing to go to his appointed place of duty at the time prescribed on 21 April 1970, and for being AWOL from 21 to 22 April 1970;

   b.  7 May 1970, for two specifications of failing to go to his appointed place of duty at the time prescribed on 3 and 4 May 1970;

   c.  17 May 1970, for two specifications of failing to go to his appointed place of duty at the time prescribed on 13 and 14 May 1970; 

   d.  19 May 1970, for two specifications of failing to go to his appointed place of duty at the time prescribed on 17 May 1970; and

   e.  2 July 1971, for being AWOL from 24 April through 23 June 1971.

6.  On 25 March 1971, a summary court-martial (SCM) found the applicant guilty of being AWOL from 16 October 1970 to 4 March 1971.  The resultant sentence was confinement at hard labor for 30 days (suspended for 90 days), a forfeiture of $60.00 pay, and reduction to PV1/E-1.  


7.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a DD Form 214 on file that shows the applicant received a UD on 31 July 1972.  This document also shows that he completed a total of 2 years, 10 months and 25 days of creditable active military service and accrued 493 days of time lost due to being AWOL and in confinement. 

8.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-212, and that he was assigned a separation program number (SPN) of 28B, which confirms he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  

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

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or general discharge (GD) under honorable conditions if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

11. Army Regulation 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that SPN 28B was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).

12.  Army Regulation 635-200 (Personnel Separations) currently provides the Army's enlisted administrative separation policy:

   a.  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.

   b.  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’s contention that his UD should be upgraded to allow him to receive the benefits he once received and thereby access medical services was carefully considered.  However, there are no provisions for upgrading a discharge solely for the purpose of obtaining benefits.  Therefore, this factor alone is not sufficiently mitigating to support granting the requested relief.  

2.  The evidence of record confirms the applicant received an HD for his initial period of service from 24 April – 23 December 1968.  It is possible he received some benefits as a result of this period of honorable service even though he did not complete his first full term of service.  However, his eligibility for veterans' benefits administered by the Department of Veterans Affairs (VA) is determined under that agencies policies and regulations and is not within the purview of the ABCMR.  Accordingly, the applicant is advised to seek an explanation concerning his benefits from the VA.  

3.  The applicant's record is void of a separation packet that contains the specific facts and circumstances surrounding his separation processing for his final period of active duty service.  However, the record contains a properly constituted DD Form 214 that confirms he was discharged under the provisions of Army Regulation 635-212 and that he was assigned a SPN of 28B, which confirms he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  This document carries with it a presumption of government regularity in the discharge process.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record clearly shows an extensive disciplinary history that includes the applicant's acceptance of NJP on five separate occasions and conviction by an SCM.  It also shows he accrued 493 days of lost time due to being AWOL and in confinement.  This record of misconduct clearly diminished the overall quality of his service below that meriting the issuance of an HD or GD by the separation authority at the time of discharge, or an upgrade of his discharge at this late date.   
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.

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)                                         AR20090016700



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ABCMR Record of Proceedings (cont)                                         AR20090016700



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