IN THE CASE OF:	  

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021109 


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 undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he needs his discharge upgraded so he can be eligible for Department of Veterans Affairs (VA) medical care because he cannot afford medical insurance. 

3.  The applicant provides in support of his application a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 (RA) on 17 April 1968 for 3 years.  He completed basic combat and advanced individual training, meeting the qualification standards for military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on seven separate occasions.  The NJPs were for failure to go at the time prescribed to his appointed place of duty on two separate occasions, for being absent without leave (AWOL) on three separate occasions, for disobeying a lawful order of a superior noncommissioned officer, and for dereliction in the performance of his duties.

4.  The applicant was tried and convicted by two special courts-martial for being AWOL on three separation occasions.  In addition, he was also tried and convicted in a summary court-martial for being AWOL.

5.  The applicant's discharge packet is not available for the Board's review. 

6.  The applicant was separated with an undesirable discharge, on 4 August 1971, and issued a DD Form 214.  He was separated under the provisions of Army Regulation 635-212 for unfitness.  He had completed 2 years, 10 months, and 7 days of creditable active service with 62 days of lost time under Title 10, U.S. Code, section 972.  He was given a reentry code of "3, 3A, and 3B" and a separation code of 28b (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities).

7.  The Army Discharge Review Board by unanimous vote denied the applicant's request to upgrade his discharge.  Their decision was based on the summary and special courts-martial convictions and acceptance of seven NJPs.  These convictions and his overall quality of service were noted as unsatisfactory or poor and discreditable in nature. 

8.  References:

	a.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop as a satisfactory Soldier, further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.  
	b.  Army Regulation 635-212 also states, in pertinent part, that in the processing of an administrative discharge, unit commanders would notify Soldiers that they were being considered for separation and the type of discharge that they could expect to receive.  The Soldier would have sought legal counsel, which includes advice that they could submit statements in their behalf and request representation by an appointed counsel or a civilian counsel at their own expense.  Soldiers would acknowledge that they understood that they could expect to encounter substantial prejudice in civilian life with a general discharge or undesirable discharge.  In addition, they acknowledge that they can be deprived of many or all Army benefits; that they could be ineligible for many or all benefits administered by the VA; and that they could be deprived of their rights and benefits as a Veteran under both Federal and state law. 

	c.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  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.

	e.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begin its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's separation package was not available, it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

3.  After a review of the applicant’s record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge.

4.  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 that 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)                                         AR20090021109





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ABCMR Record of Proceedings (cont)                                         AR20090021109



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