IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100008478 


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 an upgrade of his undesirable discharge to an honorable or a general discharge.

2.  The applicant states he would like his discharge upgraded so he may receive medical benefits.

3.  The applicant provides 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's records show he enlisted in the Regular Army for a period of 3 years on 6 March 1967 and held military occupational specialty 76A (Supply Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  His records also show he served in Vietnam from on or about 20 November 1967 to 18 November 1968.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  His records reveal an extensive history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* on 19 April 1967, for disobeying a lawful order to participate in training
* on 5 February 1969, for being absent without leave (AWOL)
* on 16 June 1969, for being AWOL

5.  His records also reveal three instances of courts-martial as follows:

	a.  on 25 September 1967, he pled guilty at a special court-martial to one specification of being AWOL during the period 4 to 31 August 1967.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of $64.00 pay per month for 3 months.  The convening authority approved the sentence on 14 October 1967 but suspended the confinement for 3 months; 

	b.  on 3 April 1969, he pled guilty at a special court-martial to one specification of breaking restriction and one specification of being AWOL during the period 12 to 28 February 1969.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $97.00 pay per month for 6 months.  The convening authority approved the sentence on 15 April 1969; and

	c.  on 24 July 1969, he pled guilty at a special court-martial to one specification of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to a forfeiture of $50.00 pay.  The convening authority approved the sentence on 25 July 1969.

6.  The facts and circumstances of his discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 5 January 1970 under the provisions of Army 

Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with a character of service of under other than honorable conditions.  He completed 2 years, 5 months, and 22 days of total active service and he had 128 days of time lost.

7.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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.

10.  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 contends his discharge should be upgraded to an honorable or a general discharge.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 

that shows he was discharged on 5 January 1970 under the provisions of Army Regulation 635-212 by reason of unfitness.  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.  He has provided no information that would indicate the contrary.

3.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  This is evident by his extensive history of NJP, AWOL, and courts-martial.  Based on his record of indiscipline, his service clearly does not merit an upgrade of his discharge.

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)                                         AR20100008478



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)