IN THE CASE OF:	  

		BOARD DATE:	    19 May 2011

		DOCKET NUMBER:  AR20100027686 


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 his undesirable discharge be upgraded to a general discharge.  

2.  He states he:

* was told his discharge would be changed to a general discharge with benefits after 6 months
* he was sent home from Vietnam because of family problems, he had to take care of his five children alone
* had been receiving medical benefits from Veterans Affairs (VA) in Florida, but he moved to North Carolina and he can no longer get medical benefits 

3.  He provides no additional documents.  

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 was inducted into the Army of the United States on 16 January 1969.  He completed basic combat training at Fort Bragg, NC and advanced individual training at Fort Leonard Wood, MO.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was reassigned to the U.S. Army Pacific on 9 August 1969, but did not comply with his assignment orders.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on two occasions for being absent without leave (AWOL) from 17 May to 30 June 1970 and 14 September to 15 September 1970.  

4.  His disciplinary record also shows he was convicted by a special court-martial of being AWOL from 21 September 1970 to 25 May 1971.  

5.  His discharge packet is not available.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 28 September 1971 under the provisions of Army Regulation 
635-212 (Personnel Separations) due to unfitness - frequent incidents of a discreditable nature with military authorities.  He was issued an Undesirable Discharge Certificate.  

6.  At the time of discharge, the applicant had completed 1 year, 7 months, and 13 days of creditable active service and he had 390 days of lost time due to being AWOL and in confinement.

7.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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 applicant's administrative discharge under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with military authorities was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

2.  His service record shows he received two nonjudicial punishments and one special court-martial conviction.  

3.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects his overall record of service.

4.  The fact that the applicant is currently experiencing difficulty obtaining healthcare is unfortunate.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

5.  His statements regarding his personal family problems are also acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.



6.  The evidence of record does not indicate the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant 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)                                         AR20100027686



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ABCMR Record of Proceedings (cont)                                         AR20100027686



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