BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100016432 


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 undesirable discharge to an honorable discharge.

2.  The applicant states:

* he was authorized to receive several awards including the Purple Heart
* Department of Veterans Affairs (VA) letter, dated 23 February 2009, shows the character of his service was honorable
* VA letter, dated 12 April 2010, states that it is an official record and replaces VA Form 20-5455 (Statement from Benefit Payment Records)

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 11 September 1970
* VA letter, dated 23 February 2009
* VA letter, dated 12 April 2010
* VA letter, dated 12 August 2009
* VA letter, dated 22 September 2009
* VA correspondence, dated 20 May 2010
* VA letter, dated 20 May 2010
* Wisconsin VA Form 2098 (Certification for Wisconsin Veterans and Surviving Spouses), dated 20 May 2010


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 records are not available to the Board.  This case is being considered using the documents submitted by the applicant.

3.  He was inducted into the Army of the United States on 18 March 1969 and he completed training as an infantryman.

4.  The facts and circumstances pertaining to the applicant's discharge are not on file.  However, the DD Form 214 he received shows that after completing 1 year and 1 month of total active service, he was discharged on 11 September 1970 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge  - Unfitness and Unsuitability) for unfitness due to frequent involvement in incidents of a discreditable nature with military or civil authorities.  His DD Form 214 shows he had 144 days of lost time and that he received an Undesirable Discharge Certificate.

5.  His DD Form 214 also shows he served in Vietnam for 7 months and 27 days and that he received the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Purple Heart

6.  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.

7.  The VA letters the applicant submits show the benefits he currently receives based on his 100-percent service-connected disability rating.  These letters also show the character of his service as honorable.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit forming drugs or marijuana, an established pattern for shirking, or an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.

9.  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.

10.  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.

11.  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 noted and the documents he submitted have been considered.  However, they are insufficiently mitigating to warrant upgrading his discharge to honorable.

2.  Although the facts and circumstances surrounding his discharge are not on file, his DD Form 214 shows he had 144 days of lost time.  He was discharged for unfitness due to frequent involvement in incidents of a discreditable nature with military or civil authorities.  He received an Undesirable Discharge Certificate.

3.  While the applicant is congratulated for the awards he received during his service, it must be presumed that he was discharged in accordance with the applicable regulation and that the action taken by the Army in his case was correct.

4.  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.  He failed to meet his burden.

5.  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 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)                                         AR20100016432



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ABCMR Record of Proceedings (cont)                                         AR20100016432



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