IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100009688


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 general discharge under honorable conditions (GD) to an honorable discharge (HD).

2.  The applicant states he applied for a Nevada State property tax exemption for veterans, but he was denied because he has a GD.

3.  The applicant provides:

* a letter from the Clark County Assessor, dated 10 February 2010
* an Affidavit of Veteran for Property Tax Exemption, dated 3 February 2010
* 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 enlisted in the Regular Army for 2 years on 26 July 1971.  He voluntarily extended his enlistment to 3 years on 29 July 1971.

3.  The applicant was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His service is summarized by his DA Form 20 (Enlisted Qualification Record) as follows:

Effective Date
Duty MOS
Principal Duty
Organization & Station
26 Jul 1971
None
Enlistment
Co B, US Army Reception Station, Ft Dix, NJ
02 Aug 1971
09BOO
Basic Combat Training
Co B, 2nd Bn, 3rd BCT Bde, Ft Dix, NJ
27 Sep 1971
11B1O
Adv Individual Training
Co D, 2nd Bn, 3rd AIT Bde, Ft Polk, LA
24 Nov 1971

Casual
En route to USARPAC (Korea)
27 Dec 1971
11B1O
Rifleman
HHC, 1st Bn, 23rd Inf, 2nd Inf Div, Korea
30 Apr 1972
11H1O
Radio Telephone Operator
HHC, 1st Bn, 23rd Inf, 2nd Inf Div, Korea
30 Jun 1972
None
Lt Truck Driver
CSC, 1s Bn, 23rd Inf, 2nd Inf Div, Korea
16 Jan 1973

Casual
En route to USA
01 Mar 1973
11B4H
Instructor
HHC, BCT Committee Group, Ft Dix, NJ
01 Nov 1973

Separation
Ft Dix, NJ
4.  The applicant's DA Form 20 also shows appointments and reductions to private (E-1) on 26 July 1971, private (E-2) on 26 November 1971, private first class (E-3) on 1 May 1972, specialist four (E-4) on 30 April 1973, private first class (E-3) on 9 August 1973, and private (E-1) on 25 October 1973.

5.  The applicant's records contain four records of nonjudicial punishment under Article 15, Uniform Code of Military Justice, for:

	a.  being absent without authority (AWOL) from his place of duty from 0800 hours, 18 June 1972, to 0830 hours, 19 June 1972;

	b.  operating a motor vehicle in excess of the Camp Hovey, Korea, speed limit on 9 September 1972;

	c.  willfully disobeying a lawful order on 6 August 1973 to return to school and attend class until all classes were completed;

	d.  being AWOL from his unit from 0930 hours, 17 September 1973, to 0400 hours, 27 September 1973; and

	e.  being AWOL from his unit from 4 October 1973 to 0400 hours, 16 October 1973.

6.  On 18 October 1973, the applicant's company commander notified the applicant of his intent to recommend his separation for unsuitability under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations).  After consulting with legal counsel, the applicant acknowledged notification, waived his rights, and declined to make a statement.

7.  On 1 November 1973, the company commander forwarded the separation action to the approving authority.  On the same date, the approving authority approved the applicant's separation and directed that he be issued a GD.

8.  The applicant was discharged on 7 November 1973 with a GD under the provisions of chapter 13, Army Regulation 635-200, for unsuitability.

9.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his GD to an HD.

2.  The applicant's records clearly show his performance was characterized by general apathy toward his military duties and an inability to expend effort constructively.

3.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service, which clearly did not rise to the level warranting an HD.

4.  The U.S. Army does not upgrade discharges solely for the purpose of qualifying veterans for benefits.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100009688



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ABCMR Record of Proceedings (cont)                                         AR20100009688



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