IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110002427 


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 upgrade of his undesirable discharge (UD) to a general discharge.

2.  He states he is requesting his discharge be upgraded so he can qualify for benefits.  He served under honorable conditions until he returned from Vietnam. He was put in an uncompromising [sic] position where he felt he had to leave for personal family business.  At the time of incarceration or discharge he was not informed that a change in his discharge could be made or attempted.  Only threats of retaliation were made if he did not sign the other than honorable discharge.  

3.  He also states that he was including a letter from the Department of Veterans Affairs (VA) attesting to the fact he was a good Soldier prior to his return to the Continental U.S. and encountered the incidents leading to his troubles.

4.  He 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’s military record shows he enlisted in the Regular Army on 26 October 1965.  He completed training and he was awarded military occupational specialty 94B (Cook).  He served in Germany from 12 April 1966 through 15 September 1966 and in Vietnam from 29 October 1966 through 26 October 1967.  

3.  On 17 June 1968, he was convicted by a special court-martial for one specification of being absent without leave (AWOL) from 3 to 23 May 1968.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $64.00 pay for 4 months.  The sentence was approved on 20 June 1968 and ordered executed.

4.  On 30 November 1968, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 17 to 30 November 1968.

5.  On 21 March 1969, he again accepted NJP under Article 15, UCMJ, for being AWOL from 9 December 1968 to 11 January 1969.

6.  On 8 August 1969, he was convicted by a special court-martial of two specifications of being AWOL from 6 to 19 May 1969 and from 8 June to 18 July 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $55.00 pay per month for 6 months.  The sentence was approved on 14 August 1969 and ordered executed.  

7.  On 3 September 1969, the Commander, USA Correctional Holding Detachment, notified the applicant of the proposed action to effect his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.   The commander stated the applicant’s record reflected 6 periods of AWOL, two special courts-martial, and two Article 15s.  He felt that due to the applicant’s negative attitude he should be eliminated.  

8.  On 19 September 1969, after consulting with counsel, he acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.  He acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He also understood that as the result of a UD, he may be ineligible for any or all benefits as a veteran under both Federal and State laws.

9.  On 19 September 1969, the applicant's battalion commander recommended approval of the applicant's separation with the issuance of a UD.

10.  On 29 September 1969, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an UD Certificate.

11.  He was discharged in pay grade E-1 on 7 October 1969, under the provisions of Army Regulation 635-212, for unfitness, with a UD.   He was credited with completion of 3 years, 1 month, and 14 days of net active service and 302 days of time lost.

12.  There is no evidence he submitted a request to the Army Discharge Review Board for an upgrade of his discharge within its 15 year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An UD was normally considered appropriate for individuals separated by reason of unfitness.

14.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 3-7b, in effect at the time, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered.  However, the evidence of record shows he was twice punished under Article 15 and convicted by two special courts-martial of periods of AWOL.  His battalion commander felt he should be eliminated from the service due to his negative attitude for unfitness.

2.  The evidence of record also shows after consulting with counsel, he acknowledged the proposed separation action for unfitness.  He waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged the effects of the issuance or a general or a UD.  He was discharged accordingly on 7 October 1969.

3.  He has provided no evidence or argument to show his UD should be upgraded to a general or an honorable discharge.  His military records contain no matter upon which an upgrade should be granted.  It appears his failure to meet acceptable standards for retention diminished the quality of his service below that meriting a general or an honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  His desire to have his UD upgraded so that he can qualify for benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for burial, medical, and/or other benefits administered by the VA.

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)                                         AR20110002427



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ABCMR Record of Proceedings (cont)                                         AR20110002427


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