BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013179 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

* He is in need of medical service from the Veterans Affairs Medical Center (VAMC)
* He is not able to be seen anywhere other than the VAMC
* After all of these years, he has served his punishment
* He realizes he made some mistakes earlier in life that are now coming back to haunt him
* Favorable consideration of his request would be greatly appreciated

3.  The applicant provides a letter from the Veterans of Foreign Wars of the U.S., dated 7 April 2010, forwarding his DD Form 149 (Application for Correction of Military Records) to this Board.

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.  On 28 September 1973, the applicant enlisted in the Army for 3 years.  He completed training in field artillery basic.

3.  The applicant had nonjudicial punishment (NJP) imposed against him on three separate occasions between 23 January 1974 and 5 February 1975 for the following incidents:

* Violating a general regulation
* Failing to obey a lawful order
* Being absent without leave (AWOL) from his unit

4.  The facts and circumstances surrounding the applicant's discharge are not on file.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5A(4), for unfitness, due to an established pattern of shirking.  He had completed 1 year and 8 months of net active service this period and he was furnished an Undesirable Discharge Certificate.

5.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

6.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a) provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

7.  Army Regulation 635-200, 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.
8.  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.

9.  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's contentions have been considered.  However, based on his overall record, the character of his service is not unjust.

2.  Although he believes that after all these years he has served his punishment, his service was not honorable.  His records show he had NJP imposed against him on three separate occasions for his acts of indiscipline while he was in the Army.  The fact that he is in need of services from the VAMC is not a sufficient basis for granting the requested relief. 

3.  As previously stated, 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 and in this case he has failed to do so.

4.  In view of the foregoing, there is no basis 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)                                         AR20100013179



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ABCMR Record of Proceedings (cont)                                         AR20100013179



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