IN THE CASE OF:  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011817


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 to an honorable discharge.

2.  The applicant states he is requesting upgrade of his discharge to qualify for benefits. 

3.  The applicant provides no additional documentation.

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 enlisted in the Regular Army on 7 November 1969.  He completed training and he was awarded military occupational specialty (MOS) 63H (Automotive Repairman).
3.  The applicant's DA Form 20 (Enlisted Qualification record) shows in:

	a.  item 41 (Awards and Decorations) he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar; and 

	b.  item 44 (Time Lost) eight entries reflecting time lost for AWOL and confinement for a total of 377 days.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  7 March 1971, for failing to obey a lawful order from his class leader on
6 March 1970,

	b.  27 March 1970, for failing to go at the time prescribed to his appointed place of duty on 22 March 1970; and
 
	c.  18 January 1971, for being absent without leave (AWOL) from 11 June to 30 September 1970 and from 6 October to 17 November 1970.

5.  The applicant was found guilty by a special court-martial on:

	a.   5 April 1971, for being AWOL from 28 January to 6 March 1971; and

	b.  2 June 1971, for willfully disobeying a lawful order from a noncommissioned officer.

6.  On 9 July 1971, the applicant's commander recommended him for separation under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability) by reason of unfitness.  The commander stated the applicant received two NJPs for AWOL while training.  He subsequently was tried by special court-martial for AWOL.  He arrived at the Correctional Training Facility (CTF), Fort Riley, KS from the Fort Hood (TX) Stockade and he immediately began to display an extremely hostile and negative attitude.  He freely verbalized his dislike for the service and the CTF.  Numerous intensive counseling sessions were of little value.  While at the CTF he was tried by special court-martial and sentenced to 3 months confinement at hard labor.  Further rehabilitative efforts were considered unfeasible.


7.  The applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.

9.  On 21 June 1971, the applicant was discharged accordingly.  He completed
8 months and 3 days of total active service with 372 days of time lost due to AWOL and confinement.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-212 provided that an individual was subject to separation for unfitness when one or more of six conditions existed.  These included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge under other than honorable conditions was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides in:

	a.  Paragraph 3-7a 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.

	b.  Paragraph 3-7b 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 contends his undesirable discharge should be upgraded because he wants the resulting benefits.

2.  His three NJPs and two court-martial convictions clearly show frequent incidents of a discreditable nature. 

3.  The applicant’s 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 directed and the reasons therefore were appropriate considering all of the facts of the case.

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.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20110011817



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