IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011155 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* The reason he is seeking an honorable discharge is on the advice of his veterans' representative
* An honorable discharge would allow him to receive medical benefits due to him for his service in the Army from 20 June 1967 to 4 October 1968
* It is his understanding that due to a fire at the St. Louis military records office he may request a discharge upgrade 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) in support of his application.

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 enlistment record shows an "X" in the "No" block for the following:

* Item 27 (Have you ever been arrested, charged, or held by Federal, State, or other law enforcement authorities for any violation of any Federal law, State law, County or Municipal law, regulation or ordinance?)
* Item 28 (Have you ever been convicted of a felony or any other offense, or adjudicated a youthful offender or juvenile delinquent?)
* Item 30 (Are you now or have you ever been on suspended sentence, parole, probation, or are you awaiting final action on charges against you?)

3.  The applicant enlisted in the Regular Army on 20 June 1967 for a period of 
3 years.     

4.  On 16 August 1967, while in basic combat training, nonjudicial punishment (NJP) was imposed against the applicant for failure to repair.  His punishment consisted of restriction.

5.  On 2 October 1967, while in advanced individual training (AIT), NJP was imposed against the applicant for violating a lawful general regulation (leaving post without a pass).  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

6.  On 8 April 1968, while in AIT, NJP was imposed against the applicant for being absent without leave (AWOL) from 19 February 1968 to 24 March 1968.  His punishment consisted of a forfeiture of pay.

7.  On 3 May 1968, while in AIT, NJP was imposed against the applicant for failure to repair.  His punishment consisted of a forfeiture of pay.

8.  Records show the applicant went AWOL on 20 May 1968, he was apprehended by civil authorities on 10 June 1968 and returned to military control.  He went AWOL again on 12 June 1968 and returned to military control on 
26 August 1968. 

9.  On 23 September 1968, a recommendation for discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct) was initiated based on the applicant's concealment of his prior civilian juvenile record (convicted of three counts of automobile theft and subsequently sentenced to 
2 years probation; and convicted of breaking and entering, larceny, fighting, and driving without a license).  

10.  On 23 September 1968, the applicant consulted with counsel and acknowledged notification of his pending separation.  He waived his rights and elected not to submit a statement in his own behalf.  

11.  On 2 October 1968, the separation authority approved the recommendation for discharge as a result of misconduct - fraudulent entry, and directed that the applicant be furnished a general discharge.

12.  Accordingly, the applicant was discharged on 4 October 1968 with an under honorable conditions (a general) discharge under the provisions of Army Regulation 635-206, for fraudulent entry.  He had served 1 year, 3 months, and 15 days of service with 133 days of lost time.

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

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section II of the regulation provided for the separation of personnel for fraudulent entry into the Army.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 sets for 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

2.  The applicant’s record of service included 4 NJPs and 133 days of lost time.  In addition, he was discharged for fraudulent entry.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.
3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20100011155





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ABCMR Record of Proceedings (cont)                                         AR20100011155



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