BOARD DATE: 2 June 2011
DOCKET NUMBER: AR20100026833
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, that his undesirable discharge be upgraded to honorable.
2. The applicant states, in effect, that he was incarcerated at 16 years of age and was later pardoned by the state of Illinois. In August 1965, he was convicted by a special court-martial and then was sent to the Republic of Vietnam (RVN). During his tour in the RVN, he was charged with having fraudulently enlisted in the U.S. Army and was subsequently discharged. Now he has health issues resulting from exposure to agent orange while in the RVN.
3. The applicant provides a copy of the Department of Veterans Affairs (VA) Administrative Decision, dated 1 October 2010, concerning the characterization of his 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 5 January 1965, the Commander, U.S. Army Fifth Recruiting District, located in Chicago, Illinois, authorized the applicant a moral waiver for enlistment into the Regular Army. The applicant's request for this waiver stated the following:
a. 1955 through 1959: He committed juvenile offenses of burglary and larceny and served a year in the St. Charles Reformatory.
b. 10 September 1960: He was released from confinement.
3. On 7 January 1965, the applicant enlisted in the Regular Army. He completed basic combat training and was subsequently assigned to Fort Gordon, Georgia, for training as a radio operator. There is no evidence showing he completed this training.
4. On 12 April 1965, the applicant accepted nonjudicial punishment for failing to secure his wall locker.
5. Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows:
a. 23 May to 10 August 1965: absent without leave (AWOL); and
b. 11 August to 5 October 1965: confinement.
6. Special Court-Martial Orders Number 398, Fort Sheridan, Illinois, dated
3 September 1965, indicate that the applicant was convicted of two specifications of AWOL. The sentence included confinement at hard labor for 4 months, forfeiture of $57.00 pay per month for 4 months, and reduction to pay grade E-1.
7. Special Court-Martial Orders Number 447, Fort Sheridan, Illinois, dated
6 October 1965, suspended for two months the unexecuted portion of the sentence to confinement and forfeiture.
8. On 19 January 1966, the applicant was assigned to the 6th Convalescent Center, 67th Medical Group, located at Fort Sam Houston, Texas.
9. On 9 April 1966, the applicant went with his unit to the RVN.
10. On 7 July 1966, the applicants commander recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-206, due to fraudulent enlistment.
11. On 25 July 1966, the commander's recommendation was returned for clarification concerning the reinstatement of the applicant's rights lost as a result of imprisonment.
12. An attached letter from the warden of the Illinois State Penitentiary stated that the applicant had been imprisoned from April 1960 through January 1963 and was paroled from January 1963 through June 1964. This period of imprisonment was for larceny of a motor vehicle. This record of imprisonment and parole was intentionally withheld by the applicant and was not indicated in his enlistment contract. The applicant had voluntarily presented the reinstatement certificate and admitted he had intentionally withheld this matter at the time of his enlistment.
13. On 7 September 1966, the appropriate authority approved the recommendation for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).
14. Accordingly, he was discharged under other than honorable conditions on
6 October 1966. He was given separation processing number 280 indicating misconduct due to fraudulent entry. He had completed 1 year, 4 months, and
24 days of creditable active duty service and had 156 days of lost time due to AWOL and confinement.
15. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
16. The VA administrative decision provided by the applicant states that his under other than honorable conditions characterization of service constituted a bar to payment of VA benefits under the provisions of Title 38, Code of Federal Regulations; however, he was entitled to healthcare benefits under the provisions of Title 38, U. S. Code chapter 17. The decision document does not specify what, if any, medical conditions the applicant has that would otherwise have entitled him to VA benefit.
17. Army Regulation 635-206 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel for fraudulent entry. If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.
18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
19. Army Regulation 635-200, paragraph 3-7b, states 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants administrative 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 and the reasons therefore were appropriate considering all of the facts of the case.
2. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge to either fully honorable or general under honorable conditions.
3. The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.
4. In view of the foregoing, the applicant's request should be denied.
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.
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