IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100014167 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD) and a DD Form 214 (Certificate of Release or Discharge from Active Duty) documenting his first enlistment. 

2.  The applicant provides a statement through counsel. 

3.  The applicant provides a copy of his DD Form 214 and a handwritten summary of his service that includes a statement regarding "special duty" in Vietnam.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, upgrade of the applicant's discharge to an HD and assistance locating a DD Form 214 documenting the applicant's first enlistment. 

2.  Counsel states, in effect, that upgrading of the applicant's discharge will enable him to enroll for Department of Veterans Affairs (VA) benefits and that the available DD Form 214 does not accurately reflect the fact that the applicant enlisted in the Regular Army (RA) on 8 June 1961.  Counsel indicates he is unwilling to discount the applicant's claim to have served in Vietnam and further states the applicant has undergone three strokes and has hypertension and other ailments and that his family would greatly appreciate getting his care through the VA.

3.  Counsel provides no additional supporting documentation.

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.  In summarizing his service, the applicant indicates he was assigned to special duty in Vietnam and was injured during this service.  He does not state when this service occurred.  There is no documentary evidence showing he served in Vietnam.  This issue will not be discussed further in these proceedings.

3.  The applicant enlisted in the Regular Army for a period of 3 years on 8 August 1961 for training in Army Career Group 63 (Automotive Maintenance).  After completing initial entry training he was awarded military occupational specialty 630.00 (Automotive Maintenance Helper) and assigned for duty with Headquarters and Headquarters Company (HHC), 3d Armored Reconnaissance Battalion, 50th Infantry, and later assigned to 2d Battalion, 15th Infantry.  Both units were stationed in the geographical area served by Army Post Office (APO) 26, which served the geographical area of Wildflecken, Germany.  

4.  On 29 November 1963, he reenlisted for a period of 3 years.  The record includes a DD Form 214 issued at the time of his reenlistment.

5.  The record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* failing to go at the time prescribed to his appointed place of duty on 12 May 1963 and 7 May 1964
* absenting himself without proper authority from his place of duty or unit on 9 August 1963 and 11 February, 2 March, 16 March, 10 May, 11 May, and 12 May 1964.
* breaking restriction on 23 March and 17 and 18 May 1964
6.  Special Court-Martial Order Number 27, issued by Headquarters, 2d Battalion, 15th Infantry, on 6 July 1964, shows the applicant was convicted of two specifications of being absent without leave (AWOL) from 29 May to 1 June 1964 and from 1 June to 13 June 1964.  He was sentenced to confinement at hard labor for 4 months, forfeiture of $73.00 per month for 6 months, and reduction to private/E-1.  Special Court-Martial Order Number 35, same headquarters, dated 17 August 1964, remitted the unexecuted portion of the sentence to confinement at hard labor.

7.  The record includes an undated memorandum showing the applicant's commander informed him he was being recommended for appearance before a board of officers to determine whether he should be eliminated from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character).  The applicant acknowledged receipt of the notification, waived his rights to a hearing and counsel, and elected not to make statements on his own behalf.

8.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a properly constituted DD Form 214 for the period ending 28 August 1964.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 and his service was characterized as under other than honorable conditions (UOTHC).  He completed 2 years, 10 months, and 21 days of active military service with 60 days of time lost.

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

10.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

12.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) states 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 record includes a DD Form 214 documenting his service from 7 August 1961 to 28 November 1963.  A copy of this document will be provided to the applicant for his records.

2.  The evidence of record does not support the applicant's request for upgrade of his UOTHC discharge to an HD.  

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.

4.  There is no evidence showing the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

5.  The applicant's record of service included numerous NJPs for unauthorized absences and breaking restriction and conviction by special court-martial for being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100014167





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ABCMR Record of Proceedings (cont)                                         AR20100014167



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