IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100008335


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 to know his status.  In effect, he is requesting a discharge upgrade.

2.  The applicant states:

* he is a Vietnam era veteran
* soon after the war, all those who received discharges under other than honorable conditions had their discharges converted to honorable
* he adds that it has taken him over 30 years to let go of what he experienced and what was done to him
* he was drafted and he did not believe in the war

3.  The applicant provides no additional documentation.

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 record shows the applicant was inducted into the Army of the United States for 2 years on 14 March 1967.  His Federal Bureau of Investigation Identification Record shows nine entries prior to 14 March 1967 and four entries after that date through 26 March 1968.

3.  The record shows that upon his induction, the applicant was an immediate disciplinary problem.  In addition to multiple periods of lost time due to absence without leave (AWOL) and confinement, the applicant had four special court-martial convictions, two records of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, and a civilian criminal conviction for burglary in the second degree in Ventura County, CA, on or about 22 May 1969.

4.  On 8 July 1969, the applicant's chain of command initiated separation action against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge - Misconduct) for a civil court conviction.  The separation action was approved on 4 September 1969 and the approving authority directed issuance of an undesirable discharge (UD).

5.  On 21 October 1969, the applicant was discharged with a UD.  His DD Form 214 (Armed Forces of the United States) shows he had 1 year, 1 month, and 20 days of creditable service with 539 days of lost time due to AWOL, military confinement, and/or civil confinement.

6.  Army Regulation 635-206, then in effect, provided that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination.  The requirement for a board of officers could be waived by the separation authority provided the individual concerned was physically in civil custody at the time.  When such separation was warranted, a UD was considered appropriate.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides guidance on characterization of service.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 requests, in effect, a discharge upgrade.  He wants to know the status of his upgrade.

2.  The applicant's status is that he has a UD and there was never any action to upgrade his character of service.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges and is specifically prohibited from establishing factors which would require automatic change or denial of a change in discharge.  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 character of service or the reasons for discharge or both were improper or inequitable.

3.  In the applicant's case, his record appropriately justifies the reason for and characterization of his UD.

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)                                         AR20100008335



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ABCMR Record of Proceedings (cont)                                         AR20100008335



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