IN THE CASE OF:	

		BOARD DATE:	  03 June 2010

		DOCKET NUMBER:  AR20090021273 


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 other than honorable conditions be upgraded.

2.  The applicant states, in effect, there is no error or injustice, he was young and immature and made some unfortunate decisions.  He contends that he needs his discharge upgraded in order to receive medical treatment and medication.  

3.  The applicant did not provide any additional documentary evidence 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 on 30 April 1964 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 55A (Ammunition Helper).  

3.  On 29 November 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit without proper authority.  His punishment consisted of a forfeiture of $20 pay for 1 month and restriction to the unit area for a period of 14 days.  On 2 May 1966, the applicant accepted nonjudicial punishment under Article 15 for failing to go to his appointed place of duty at the prescribed time.  His punishment consisted of reduction to private/E-2, a forfeiture of $25.00 pay and extra duty for 14 days.  The applicant received his third punishment under Article 15 on 30 August 1966 for failing to go to his appointed place of duty at the prescribed time.  His punishment was a forfeiture of $20.00 for 1 month.

4.  A DA Form 2496 (Disposition Form), dated 4 October 1966, shows the applicant's conduct was rated "unsatisfactory" and his efficiency was rated "fair."  

5.  The applicant's records are void of a complete discharge packet.  However, a statement, dated 21 July 1967, from the 571st Ordnance Company explains the reason for the delay in processing the applicant's discharge packet was a failure on the part of the 545th Personnel Service Company to locate the applicant's personnel records in a timely manner.   

6.  Special Orders Number 179, dated 27 July 1967, discharged the applicant under section VI, Army Regulation 635-206.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 27 July 1967 with an "under other than honorable conditions" character of service.  He had completed 2 years, 4 months, and 23 days of total active service and 1 year, 3 months, and 14 days of foreign service.  He had a total of 305 days lost due to civil confinement.

7.  A statement from Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, dated 27 July 1967, indicates the applicant's DD Form 214 was forwarded without a signature because the applicant was discharged while in confinement at the Kentucky State Penitentiary, Eddyville, Kentucky.

8.  The applicant applied to the Army Discharge Review Board in April 1968 for an upgrade of his discharge.  The board made a determination that the applicant had been properly discharged and thus denied his request.  

9.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.

10.  Army Regulation 635-200 sets forth the basic authority 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.

11.  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 request for an upgrade of his under other than honorable conditions discharge so that he may be able to obtain medical treatment and medication was carefully considered and found not to be supported by the evidence.

2.  The applicant was discharged under the provisions of Army Regulation 
635-206.  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.  In fact, the applicant admits there is no error or injustice involved with his discharge.

3.  Based on the applicant's record of indiscipline, which includes three charges under Article 15 of the UCMJ, a failure to repair, and 305 days of confinement, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his discharge.

4.  Properly issued discharges are not changed for the purpose of making an applicant eligible for other programs or benefits.

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)                                         AR20090021273



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ABCMR Record of Proceedings (cont)                                         AR20090021273



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