IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007927 


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 undesirable discharge (UD) be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states that:

   a.  he was under the impression that he received or would receive a GD within 6 months of his discharge from active duty;

   b.  he has aggressive prostate cancer and eight of his nine lesions require ongoing radiation and chemo treatment; and

   c.  he was told it was assumed the Department of Veteran Affairs (VA) would help.  

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 enlisted in the Regular Army on 13 October 1969.  He served in military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was advanced to private first class (PFC)/E-3 on 14 April 1970 and this was the highest rank he attained while serving on active duty.  It also shows he was reduced on two separate occasions, the last of which was on 19 February 1971 to private (PV1)/E-1. 

4.  The applicant's DA Form 20 also shows, in item 44 (Time Lost Under Section 972, Title 10, USC), he accrued 107 days of lost time between 6 February and 22 October 1970 as a result of being absent without leave (AWOL) and one period of confinement.

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) for being AWOL on 12 February, 11 May, 6 July, 24 July, and 7 August 1970.  He also accepted NJP on 
19 February 1971 for failing to go at the time prescribed to his appointed place of duty (twice).

6.  On 13 August 1970, a special court-martial (SPCM) found the applicant guilty of three specifications of failing to go at the time prescribed to his appointed place of duty on 17, 18, and 19 July 1970.  The resultant sentence was confinement at hard labor for 45 days and reduction to PV1/E-1.

7.  On 31 March 1971, the applicant underwent a psychiatric examination.  The examining psychiatrist determined the applicant was alert, oriented and coherent, his memory and judgment were intact, and there were no signs of thought or affective disorder.  The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in judicial proceedings.


8.  The attending psychiatrist further stated the applicant was not suffering from an incapacitating mental illness that warranted a medical separation under the provisions of Army Regulation 40-501 and recommended the applicant be administratively separated for his own good and that of the military.

9.  On 24 May 1971, the applicant's unit commander notified the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness based on his record of NJP.  He also stated he was recommending the applicant receive a UD.

10.  On 24 May 1971, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He further elected not to make a statement in his own behalf.

11.  On 11 June 1971, the separation authority approved the recommendation and directed the applicant receive a UD.  On 19 June 1971, the applicant was discharged accordingly.

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued  to the applicant at the time confirms he completed a total of 1 year, 4 months, and 20 days of creditable active military service and that he accrued 107 days of time lost.

13.  On 26 September 1973, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and denied his request for an upgrade of his discharge.

14.  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 HD or GD if warranted by the member's overall record of service.  However, a UD was normally considered appropriate for members separating under these provisions.

15.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7b, provides that a GD 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 HD.  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 contends his UD should be upgraded to a GD because he thought he received or would receive a GD within 6 months of his discharge from the Army.  However, the U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The evidence of record confirms the applicant was properly advised by his commander that separation action was being initiated and that he was afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of rights.

3.  The record further shows the applicant was counseled concerning his rights, and he voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record documents an extensive disciplinary history that includes an SPCM conviction and six NJP's.  As a result, it is clear his UD accurately reflects the overall qualify of his service.  It is also clear his record did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

5.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100007927



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)