IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100016798 


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.

2.  The applicant states at the time of his discharge his commander didn't want him in the unit so he let him go home for extended periods without leave papers.  During Christmas 1974, he was home and his commander said he had to return to get leave papers.  He could not get back to base and his commander had him arrested.  He was told he already had a discharge and he could go back and get it, but he did not.  He didn't know he received a discharge under conditions other than honorable until he received a copy of it.  He read in the paper that the Nixon administration upgraded all of the discharges from the Vietnam era so he thought his would be automatically upgraded.  He just found out recently that it was not upgraded.  He can only say he was young and let his personal issues over-shadow his judgment.  He further states at such time that he would need to use Department of Veterans Affairs (DVA) benefits he would like to do so; however, he cannot use them with his current discharge.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 record shows he enlisted in the Regular Army on 7 September 1972 at the age of 19.  He held military occupational specialty 76Y (Unit and Organization Supply Specialist/Armorer).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  He was assigned to Fort Lewis, WA.  

3.  His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

* On 7 October 1972, for being absent without leave (AWOL) from 2 October - 5 October 1972
* On 2 July 1973, for being absent from his place of duty 
* On 9 August 1973, for being absent from his place of duty on two occasions and for disobeying a lawful order
* On 3 April 1974, for being absent from his place of duty and for disobeying a lawful order
* On 25 June 1974, for being absent from his place of duty, for disobeying a lawful order, and for being AWOL from 21 May - 23 May 1974
* On 18 August 1974, for being AWOL from 7 August - 8 August 1974
* On 16 September 1974, for being AWOL from 29 August - 30 August 1974

4.  On 13 November 1974, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness, due to an established pattern of shirking. 

5.  On 13 November 1974, he consulted with legal counsel and he was advised that discharge action was being initiated against him under the provisions of Army Regulation 635-200, chapter 13; the effect on future enlistment in the Army; the possible effects of an other than honorable discharge; and of the procedures 


and rights that were available to him.  He further acknowledged he understood if he were issued an undesirable discharge he could expect to encounter substantial prejudice in civilian life and he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers and he elected not to submit a statement in his own behalf

6.  On 30 December 1974, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness.  He directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 30 January 1975, he was discharged accordingly.

7.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, with an under conditions other than honorable characterization of service and issuance of an Undesirable Discharge Certificate.  He completed 2 years, 3 months, and 13 days of total active service with 41 days of time lost.

8.  On 9 July 1979, the Army Discharge Review Board denied his request for a change in the type and nature of his discharge and determined that he was properly discharged.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous times he received NJP under UCMJ for being AWOL, absent from his place of duty, and disobeying lawful orders.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge for this period of service.

3.  Records show that he was between19 and 21 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical 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.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the DVA.

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)                                         AR20100016798



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ABCMR Record of Proceedings (cont)                                         AR20100016798



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