BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029065 


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 that his undesirable discharge be upgraded to general so he can qualify for medical benefits from the Department of Veterans Affairs (VA).

2.  The applicant states his discharge was unjust due to the way the Army was run at that time and everyone's hands were tied.  He also states there was no reasoning with anyone and there was no one to turn to for help.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or 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 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 born on 25 August 1949 and was inducted into the Army of the United States in Baltimore, Maryland, with a moral waiver on 1 May 1969.  He completed basic training at Fort Bragg, North Carolina, and was transferred to Fort Lee, Virginia, to undergo advanced individual training (AIT) as a memorial activities specialist.

3.  He did not complete that training and was transferred to training as a laundry impregnation specialist.  He did not complete that training and was classified as a duty Soldier in military occupational specialty 57A.

4.  He was transferred to Vietnam on 4 November 1969 and was initially assigned as a security guard.  On 22 December 1969, he was transferred to the 264th Transportation Company in Qui Nhon for duty as a longshoreman's aide.

5.  On 2 January 1970, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty (guard duty).

6.  On 24 January 1970, the applicant's commander initiated action to bar him from reenlistment due to his poor military bearing, unsatisfactory conduct and efficiency, disciplinary record, and disregard for authority.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment.

7.  On 26 January 1970, NJP was imposed against him for being intoxicated on duty and two specifications of disobeying lawful orders from a superior commissioned officer.

8.  On 17 February 1970, he was transferred to the 285th Transportation Company for duty as a cargo checker.

9.  On 7 March 1970, NJP was imposed against him for being absent without leave (AWOL) from 28 February to 2 March 1970 and from 3 to 5 March 1970.

10.  On 7 March 1970, the applicant's commander also notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  He cited as the basis for his recommendation that the applicant had shown nothing resembling honest, fair work, initiative, or interest in his assigned duties.  He displayed a totally irresponsible, negative, apathetic, and disrespectful attitude in his work performance and conduct.  He also showed disregard and apathy towards his contemporaries and the Army and flagrant insubordination towards authority.  Additionally, the applicant repeatedly stated to his commander that it was his desire to be discharged under the provisions of Army Regulation 635-212 and he would go to any limits to obtain the discharge.

11.  On 9 March 1970, he underwent a psychiatric evaluation and was deemed to have no psychiatric disease and was able to distinguish right from wrong and adhere to the right.  The examining psychiatrist opined that the applicant wanted out of the Army and that another rehabilitative transfer would produce minimal results.

12.  After consulting with counsel the applicant waived all of his rights and elected not to submit a statement in his own behalf.

13.  On 27 March 1970, the applicant's commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.

14.  The appropriate authority approved the recommendation for discharge on 4 April 1970 and directed that he be furnished an Undesirable Discharge Certificate.

15.  He departed Vietnam on 8 April 1970 and was transferred to Fort Lewis, Washington, where he was discharged on 10 April 1970 under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He completed 11 months and 8 days of total active service.  He served 5 months and 5 days in Vietnam.

16.  On 19 May 1980, he applied to the Army Discharge Review Board for an upgrade of his discharge based on the inequitable treatment he received in the Army.  He also asserted that he was married with a family and that he was young and foolish when he was in the Army and did not understand the consequences of his actions at the time, but he was much wiser now and had become a responsible citizen deserving of an upgrade of his discharge.  He also stated he wanted his family to be proud of him and he desired to open his own business.

17.  On 3 April 1981 after reviewing the available records and considering the facts and circumstances, the Army Discharge Review Board determined his discharge was both proper and equitable.  The board voted unanimously to deny his request.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

19.  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.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

2.  The applicant's contention has been considered.  However, his repeated misconduct and his undistinguished record of service is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of a general discharge and the board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.

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)                                         AR20100029065



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ABCMR Record of Proceedings (cont)                                         AR20100029065



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