IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100009855 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was 19 years of age when he was involved in an incident off post with civilians and the charges against him were later dismissed.  However, the military based their decision to separate him on the charges against him.  He states the military assumed he would not be able to continue to perform his duties; however, the incident did not deter him from performing his military duties.

3.  The applicant states since he was discharged he has been a good citizen and family man and that he has not been in any trouble.  When he tried to apply for Department of Veterans Affairs (DVA) health benefits he was told due to the character of his service he was not eligible for DVA health benefits.

4.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 December 1970
* Social Security Administration Card
* Michigan Commercial Driver License
* Six Letters of Support from his family, friends, and pastor 



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 (RA) on 16 January 1970 and successfully completed basic training.  He did not successfully complete advanced individual training.  

3.  On 17 March 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for falling sleeping at his post.

4.  On 28 August 1970, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from a noncommissioned officer (NCO), wrongfully having in his possession an official military identification card, and stealing a U.S. Government Motor Vehicle Operators License and meal card.

5.  On 18 September 1970, the applicant was arrested and charged with breaking and entering by civilian authorities of Waynesville, Missouri.  He was confined by civilian authorizes for the period 18 September through 7 October 1970.  The disposition of the applicant's charges is not available.

6.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows he was discharged on 3 December 1970 for unfitness under the provisions of Army Regulation 635-212 (Discharge Unfitness and Unsuitability).  He was issued an undesirable discharge after completing 9 months and 27 days of creditable active service with 21 days of lost time due to being in confinement.

7.  The applicant provided six letters of support.  All six authors stated the applicant is a trustworthy, responsible person.  One author stated that "While Robert may have made an error in judgment years ago during his enlisted time in 

the service, to date; he has not been involved in any situations that would have caused him to stray from the path of being an upstanding citizen.  It is also my understanding that during that regrettable time, the former Pastor of Russell Street Missionary Baptist Church, Pastor Anthony C _ _ _ _ _ _ (now deceased), wrote a letter of support for Robert which weighted heavily in the decision for the civilian case to be dismissed.  I say this to make the point that because Robert had, then and now, the love and strength of a great support system, it has not failed him and he has not let us down."

8.  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 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents.

9.  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 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 has prevented him from accessing DVA health benefits.  However, the ABCMR does not grant relief solely for the purpose of obtaining DVA benefits.  

2.  The applicant's good post-service since his discharge is acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge and upon review the good post-service conduct is not sufficient to mitigate his indiscipline in the RA.

3.  The applicant's separation processing documents are not available.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations without procedural errors that would have jeopardized his rights.

4.  The available evidence shows he received two Article 15s and he was confined by civil authorities.  He had completed 9 months, and 27 days of creditable active service before he was separated with 21 days of lost time due to being in confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or general 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)                                         AR20100009855



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ABCMR Record of Proceedings (cont)                                         AR20100009855



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