IN THE CASE OF:	   

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007812 


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 discharge.

2.  The applicant states that, at the time of his discharge, the colonel called him into the office and gave him papers and told him to leave the base.  He did not know it was a bad discharge.  He was young and didn't know what was going on.  He has health problems.  The Department of Veterans Affairs (VA) had to amputate his foot, but the bad discharge precludes the VA from continuing to treat him.

3.  The applicant provides no additional documents or argument to support his case.

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 was inducted on 17 June 1966 at the age of 19 years and 2 months.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 71B as a clerk typist.

3.  He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 3 to 12 September 1966.

4.  He was convicted by two separate special courts-martial of AWOL from 9 January to 20 February 1967 and from 17 May to 28 August 1967.

5.  On 20 October 1967, the applicant was notified of recommended separation for unfitness.  

6.  He consulted with counsel and waived consideration by and appearance before a board of officers.  He also waived representation by counsel and declined to submit statements in his own behalf.  

7.  The applicant also stated that he could expect to encounter substantial prejudice in civilian life.  He also indicated he understood that separation with an undesirable discharge would be under conditions other than honorable and that he would be ineligible for many or all veterans benefits under Federal or state laws.

8.  The intermediate commander considered the case and recommended an undesirable discharge.  The separation authority directed that the applicant be discharged for unfitness and issued an Undesirable Discharge Certificate.

9.  On 3 November 1967, the applicant was separated under other than honorable conditions.  He had completed 8 months and 5 days of creditable service and had acquired 252 days of lost time.

10.  There is no available evidence that the applicant ever applied to the Army Discharge Review Board.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.


12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  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 states he did not know it was a bad discharge.  He was young and didn't know what was going on.  He now has health problems.  The VA had to amputate his foot, but the bad discharge precludes the VA from continuing to treat him.

2.  The applicant was over 19 years old when he was inducted and he demonstrated the capacity for honorable service by completing basic and advanced individual training and earning an MOS as a clerk typist.  Furthermore, he acknowledged during the discharge process that he understood the nature and consequences of the discharge he was receiving.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20100007812





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ABCMR Record of Proceedings (cont)                                         AR20100007812



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