IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010492 


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 a general discharge under honorable conditions.

2.  The applicant states when he signed his discharge he did not understand English well, so he did not know what he was signing:

	a.  He states he recently located his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and provided a copy to the Department of Veterans Affairs (VA) hospital in order to obtain health care benefits.  However, despite having served in the U.S. Army for more than 
6 months, officials at the hospital informed him he was not eligible for benefits.

	b.  He adds that, although his conduct was not the greatest while he was in the Army, he is sorry for his mistakes and requests an upgrade of his discharge so that he may qualify for veteran's benefits.

3.  The applicant provides a self-authored statement, a letter from his pastor, a certificate, and a copy of his DD Form 214.

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 a period of 2 years on 14 July 1971.

3.  The applicant's military records contain copies of five DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) that shows he received nonjudicial punishment (NJP) under Article 15, UCMJ:

	a.  On 15 December 1971, for failing to go at the time prescribed to his appointed place of duty on 14 December 1971.  His punishment consisted of a forfeiture of $50.00 pay.

	b.  On 11 January 1972, for failing to go at the time prescribed to his appointed place of duty on 6 and 7 December 1971.  His punishment consisted of a forfeiture of $30.00 pay and 14 days of extra duty.

	c.  On 11 January 1972, for failing to go at the time prescribed to his appointed place of duty on 10 January 1972 and for being absent from his unit without authority from 3 to 7 January 1972.  His punishment consisted of a forfeiture of $60.00 pay and 14 days of extra duty.

	d.  On 17 January 1972, for failing to go at the time prescribed to his appointed place of duty on 16 January 1972.  His punishment consisted of a forfeiture of $50.00 pay.

	e.  On 20 January 1972, for failing to go at the time prescribed to his appointed place of duty on 19 January 1972.  His punishment consisted of a forfeiture of $40.00 pay and 7 days of extra duty.

	f.  On each of the above five occasions the applicant acknowledged receipt of the NJP action with both his initial and signature, and elected not to submit matters in extenuation, mitigation, or defense.  


	g.  In each of the above instances, the applicant also indicated with his initial and signature that he did not appeal the NJP.

4.  On 21 January 1972, the applicant's company commander recommended that the applicant be separated from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness based on frequent incidents of a discreditable nature with military authorities and that an Undesirable Discharge Certificate be issued.

   a.  The commander confirmed with his signature that he advised the applicant of the basis for the contemplated separation action, of its effect, of his rights, and that the applicant had consulted with counsel, as required.

   b.  The administrative separation packet contains a certificate that shows the company commander confirmed the incidents involving the applicant and his punishment under Article 15.  He also stated the applicant had been counseled numerous times by the cadre in the unit regarding both his performance and attitude, but with little results.  He added the applicant was a very immature individual who did not understand the military way of life, he made no attempt to improve his situation, and he seemed not to care about remaining in the military.

5.  The battalion and brigade commanders recommended approval of the applicant's discharge for unfitness with an undesirable discharge.

6.  The separation authority approved the discharge under the provisions of Army Regulation 635-212 for unfitness and directed that a DD Form 258A (Undesirable Discharge Certificate) be issued.

7.  The applicant's DD Form 214 shows he was discharged on 8 February 1972 in accordance with Army Regulation 635-212 with an undesirable discharge.  At the time he had completed 6 months and 20 days of net active service.  

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  In support of his application, the applicant provides the following documents:

   a.  A letter from Mr. Julio Medina G--------, Pastor of the New Jerusalem Church in Ponce, Puerto Rico.  He states the applicant is a member of the church and he has known him for 40 years.  He also states the applicant is an all around good person and requests the Board favorably consider the applicant's request for an upgrade of his discharge.

   b.  Commonwealth of Puerto Rico, Police of Puerto Rico, Certificate of No Penal Record, dated 2 March 2010, that shows the applicant's name did not appear with a penal record in a search of the Bureau of Penal Records.

10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provided that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, 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 that his discharge should be upgraded to a general discharge under honorable conditions because he signed his discharge without knowing what he was signing and he needs his discharge upgraded in order to qualify for veteran's benefits.

2.  The applicant's contentions were carefully considered.

	a.  Records show the applicant received NJP on five separate occasions.  On all five occasions he acknowledged that the reason(s) for each Article 15 had been communicated to him; he elected not to submit matters in extenuation, mitigation, or defense; and he decided not to appeal any of the Articles 15.

   b.  Records show the applicant's frequent incidents of a discreditable nature with military authorities (as documented by five nonjudicial punishments) which formed the basis for the company commander's separation recommendation.

   c.  Records show the commander confirmed with his signature that he advised the applicant of the basis for the contemplated separation, of its effect, of his rights, and that the applicant had consulted with counsel on the matter.


3.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was appropriately issued an undesirable discharge and he has not provided any evidence sufficient to support upgrading his discharge.

4.  The applicant's post-service conduct and faithful participation in his church was considered.  However, it is not sufficiently mitigating to warrant relief.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of enhancing employment opportunities or making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20100010492



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ABCMR Record of Proceedings (cont)                                         AR20100010492



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