IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012844 


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 undesirable discharge be upgraded so he can qualify for benefits from the Department of Veterans Affairs (VA).

2.  The applicant states he was not ready to handle military life.  He is now homeless.

3.  The applicant provides a copy of 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's military personnel records show he enlisted in the Regular Army on 28 August 1972 for a period of 2 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 94B (Cook).

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 23 March 1973 for wrongful possession of marijuana
* 7 May 1973 for two specifications of failure to go to his prescribed place of duty
* 17 July 1973 for being absent without leave (AWOL) from on or about      18 June 1973 to on or about 2 July 1973

The punishment imposed on 17 July 1973 included 30 days in the 1st Corps Support Command Correctional Custody Facility.

4.  On 13 August 1973, the applicant pled guilty and was found guilty before a special court martial for breaching the restraint imposed by leaving a work detail while duly undergoing the punishment of correctional custody on or about 19 July 1973.

5.  On 4 October 1973, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

6.  The applicant's commander's notification of his intention to recommend him for elimination from the service for unfitness was not available for review.

7.  On 10 October 1973, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200 for unfitness.
He waived consideration of his case by a board officers and personal appearance before such a board.  The applicant stated that he was not submitting statements in his own behalf and that he waived representation by counsel.  

8.  The applicant also acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws, and that he may expect to encounter substantial prejudice in civilian life.

9.  On 10 October 1973, the applicant's commander recommended him for discharge under the provisions of Chapter 13 of Army	Regulation 635-200 by reason of unfitness due to his frequent incidents of a discreditable nature.  The commander stated the applicant was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  His actions since his arrival precluded accomplishment of the objective as evidenced by his resumption of [poor] behavior, attitude, and ability.  He had demonstrated a disregard for military authority and indicated no desire for returning to duty.  It was obvious that his primary objective was to be eliminated from the military service by any means.

10.  The commander stated the applicant's present attitude and his failure to react constructively to the rehabilitation program were clearly indicative that he should not be retained in the service.  He did not meet the criteria for further rehabilitation attempts.

11.  On 11 October 1973, the appropriate authority waived rehabilitative reassignment, directed that the applicant be discharged under the provisions of Chapter 13 of Army Regulation 635-200, and that he be furnished an Undesirable Discharge Certificate.

12.  On 15 October 1973, the applicant was discharged under the provisions of 
Chapter 13 of Army Regulation 635-200 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. He was issued an Undesirable Discharge Certificate.  He had completed 
8 months and 24 days active service that was characterized as under conditions other than honorable.  He had 145 days of time lost.  

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 18 July 1977, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, provided for discharge of individuals for unfitness.  Among the reasons for unfitness were frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  This regulation further provided that an individual separated for unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

15.  Army Regulation 635-200 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.  

16.  Army Regulation 635-200 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 undesirable discharge should be upgraded so he can qualify for benefits from the VA.

2.  The ABCMR does not correct records solely for the purpose of establishing eligibility for veteran's benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for disabilities incurred while in the service should be addressed to the VA.

3.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant accepted NJP on three occasions and was convicted by one special court-martial.  This clearly shows the applicant has not met the standards of acceptable conduct and performance of duty for Army personnel.  His 
145 days of time lost and breaching restraint while in correctional custody clearly shows his service to be unsatisfactory.

5.  In view of the above, there is insufficient basis to upgrade the applicant's discharge to an honorable discharge or a 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)                                         AR20100012844





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ABCMR Record of Proceedings (cont)                                         AR20100012844



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