BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011441 


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 under conditions other than honorable discharge to a general discharge under honorable conditions.

2.  The applicant states he requests upgrade of his discharge based on a review of his records. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's discharge to a general discharge under honorable conditions.

2.  Counsel states, in effect, that an upgrade of the applicant's discharge will allow him to apply for Department of Veterans Affairs (DVA) benefits.

3.  Counsel provides no additional documentary evidence in support of the request.

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 and entered active duty in the Regular Army (RA) for a period of 3 years on 9 December 1966.  Upon completion of training he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).

3.  A DD Form 214 shows the applicant was honorably discharged on 8 August 1967 to reenlist in the RA.  At the time he had completed 8 months of net active service and 4 months and 28 days of overseas service in U.S. Army Europe [Germany].

4.  The applicant reenlisted in the RA for a period of 3 years on 9 August 1967. 
He served a tour of overseas duty in the Republic of Vietnam from 8 December 1967 through 17 December 1968.

5.  Headquarters, 80th General Support Group, Special Court-Martial Order Number 43, dated 10 August 1968, shows the applicant was tried at a special court-martial.

   a.  He pled guilty and was found guilty of the charge and specification of, on 26 March 1968, wrongfully having in his possession 71.4 grams, more or less, of marijuana.

   b.  On 5 August 1968, he was sentenced to forfeit $73.00 pay per month for three months and to be reduced to the grade of private (E-1).
   
   c.  On 10 August 1968, the convening authority approved the sentence and ordered it duly executed.

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

	a.  for failing to go at the time prescribed to his appointed place of duty on
25 September 1968; and
	b.  for wrongfully communicating a threat to a noncommissioned officer (NCO) on 27 September 1968.

7.  The "Corrected Copy" of Headquarters, 184th Ordnance Battalion (Ammunition), Special Court-Martial Order Number 81, dated 12 December 1968, shows the applicant was tried at a special court-martial.

a. He was found guilty of the charges and specifications of:

       (1)  willfully disobeying a lawful order from his superior NCO;

       (2)  using disrespectful language toward his superior NCO, who was then in the execution of his office; and

       (3)  absenting himself from his unit without proper authority, from on or about 26 November 1968 to on or about 4 December 1968.

   b.  On 9 December 1968, he was sentenced to forfeit $73.00 pay per month for three months and confinement at hard labor for three months.

   c.  On 12 December 1968, the convening authority approved the sentence, except that part of the sentence adjudging confinement at hard labor for three months was suspended until 9 March 1969 at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence was to be remitted without further action.

8.  Headquarters, U.S. Army Combat Developments Command, Experimentation Command, Fort Ord, California, Special Court-Martial Order Number 53, dated
5 May 1969, shows the applicant was tried at a special court-martial.

   a.  He pled guilty and was found guilty of the charge and specification of, on or about 20 January 1969, absenting himself from his unit without proper authority and remaining absent until on or about 26 February 1969.

   b.  On 3 April 1969, he was sentenced to be confined at hard labor for six months, to forfeit $97.00 pay per month for six months, and to be reduced to the grade of private (E-1).  (Two previous convictions considered.)
   
   c.  On 5 May 1969, the convening authority approved the sentence and ordered it duly executed with the applicant to be confined in the Post Stockade, Fort Ord, California, and the confinement served therein, or elsewhere as competent authority may direct.

9.  The applicant's military personnel records do not contain a copy of his separation packet.

10.  U.S. Army Correctional Training Facility, Fort Riley, Kansas, Special Orders Number 132, dated 1 July 1969, discharged the applicant on 8 July 1969 under the provisions of Army Regulation 635-212 [Personnel Separations - Discharge - Unfitness and Unsuitability] based on unfitness and directed that a
DD Form 258A (Undesirable Discharge Certificate) be issued to him.

11.  U.S. Army Correctional Training Facility, Fort Riley, Kansas, Special Court-Martial Order Number 578, dated 7 July 1969, directed that, effective upon date of discharge, the unexecuted portion of the applicant's sentence to confinement at hard labor and forfeiture of pay was remitted.

12.  The applicant's DD Form 214 shows he was discharged on 8 July 1969 in accordance with Army Regulation 635-212 with service characterized as under conditions other than honorable.  At the time he had completed 1 year, 6 months, and 12 days of net active service this period.

   a.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal [with 2 bronze service stars] for participation in the Vietnam Counteroffensive Phase III and Tet Counteroffensive campaigns, Republic of Vietnam Campaign Medal with Device (1960), and two Overseas Service Bars.

   b.  Item 32 (Signature of Person Being Transferred or Discharged) shows the applicant signed the document.

13.  On 31 July 1981, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under conditions other than honorable discharge.

   a.  On 20 January 1982, the ADRB considered the applicant's military records and all other available evidence.  The Board noted, in pertinent part, "[f]ollowing conviction by SPCM [Special Court-Martial], the applicant was sent to the Correctional Training Facility at Fort Riley where he continued his record of unsatisfactory performance.  When confronted with administrative discharge proceedings to eliminate him from the service under [AR] 635-212, the applicant waived his rights to a Board and counsel.  His commander, in the discharge proceedings, noted that the applicant had continued his incidents of a discreditable nature, that he was an extensive user of drugs, that he had a complete disregard for military authority and showed no desire to be rehabilitated or to return to duty.  The record reflected many counseling's without positive effect.  He was found mentally and physically qualified for separation."

   b.  The ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

14.  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.

15.  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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a general discharge under honorable conditions so that he may apply for veteran's benefits.

2.  The evidence of record shows the applicant's period of prior honorable service is documented in his military records and, as he requests, he may use his
8 August 1967 DD Form 214 in support of his efforts to obtain veteran's benefits.

3.  The evidence of record shows that the applicant was discharged on 8 July 1969 under the provisions of Army Regulation 635-212 for unfitness with a characterization of service of under conditions other than honorable.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's discharge is presumed proper and equitable.

5.  The applicant's military records were carefully reviewed and considered.

	a.  The evidence of record shows the applicant completed a 12-month tour of duty in Vietnam during the period of service under review.  There is no evidence he was awarded any individual awards for heroism, meritorious achievement, or meritorious service.

   b.  The evidence of record shows the applicant received NJP on two separate occasions during the period of service under review.

	c.  The evidence of record shows the applicant was convicted at a special court-martial on three separate occasions during the period of service under review.

   d.  In view of all of the foregoing, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

6.  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 Department of Veterans Affairs.

7.  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.  Therefore, there is no justification for granting the applicant's request.


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)                                         AR20100011441



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ABCMR Record of Proceedings (cont)                                         AR20100011441



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