IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110013709 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states the Department of Veterans Affairs (VA) is proposing to sever his VA benefits.  VA has determined his service did not warrant benefits due to his being court-martialed for being absent without leave (AWOL).  He is totally disabled due to illness suffered from service in the Republic of Vietnam and has received VA benefits for 11 years.

3.  The applicant provides a letter, complete date unreadable, from the VA.

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.  He enlisted in the Regular Army on 1 April 1965 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He accepted nonjudicial punishment (NJP) on:

* 27 April 1965 for being AWOL from 24 - 26 April 1965
* 10 August 1965 for being AWOL from 1 - 9 August 1965

4.  On 4 October 1966, he pled guilty and was found guilty before a special court-martial of being AWOL from 29 January to 7 September 1966.

5.  He accepted NJP on 26 January 1968 for being AWOL from 22 - 25 January 1968.

6.  On 16 April 1968, he pled guilty and was found guilty before a special court-martial of being AWOL from 31 January to 21 March 1968.

7.  He accepted NJP on 12 August 1968 for being AWOL from 14 June to 
8 August 1968.

8.  He was processed for discharge by reason of unfitness, an established pattern of shirking.  He was discharged on 22 January 1969 and issued an Undesirable Discharge Certificate.  He had 638 days of time lost.

9.  On 11 January 1999, the Deputy Assistant Secretary, under the authority of Title 10 U.S. Code, section 1552 (10 USC 1552), approved the recommendation of the ABCMR to void his previous discharge and change his military records to show:

	a.  He was unsuitable for continuation on active duty by reason of a character and behavior disorder.

	b.  He was released from active duty by reason of unsuitability.

	c.  The characterization of his service as under honorable conditions (general).

	d.  He was issued a General Discharge Certificate.

10.  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 6b(2) of the regulation provided that members who were determined to suffer from character and behavior disorders were subject to separation for unsuitability.  This regulation further provided that Soldiers separated by reason of unsuitability would be furnished an honorable or general discharge certificate as warranted by their military record.

11.  Army Regulations 635-200 (Personnel Separations), in effect at the time, provided that an honorable discharge would be furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.  

12.  38 Code of Federal Regulations, Section 3.12  Character of discharge provides the characterization of discharges required to receive VA benefits.

	a.  Paragraph (c) lists conditions under which VA benefits are not payable.  One of the conditions listed is a discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days.

	b.  Paragraph (e) states an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under the authority of 10 USC 1552 is final and conclusive on the VA.  The action of the board sets aside any prior bar to benefits imposed under paragraph (c) of this section.

DISCUSSION AND CONCLUSIONS:

1.  Based on his conviction by two special courts-martial, he is not entitled to an honorable discharge.  Therefore, there is no basis to upgrade his discharge.

2.  His general discharge under honorable conditions was issued through the ABCMR under the authority of 10 USC 1552 and is final and conclusive on the VA.  Therefore, the previous action by the ABCMR sets aside any bar to 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 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)                                         AR20110013709





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ABCMR Record of Proceedings (cont)                                         AR20110013709



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