IN THE CASE OF:
BOARD DATE: 7 February 2012
DOCKET NUMBER: AR20110014262
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 general discharge to an honorable discharge.
2. The applicant states:
* he cant get a grant for school or Department of Veterans Affairs (DVA) benefits because his discharge is not honorable
* he cant work at a public job anymore because he gets in too much trouble because of his hearing problem
3. The applicant provides:
* VA Form 21-526b (DVA - Veterans Supplemental Claim for Compensation), dated 15 September 2010
* Documentation on tinnitus
* A letter from the DVA, dated 29 December 2008
* A letter from the Illinois Student Assistance Commission, dated 1 October 2010
* 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 applicants 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 applicants 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
29 November 1966. He completed his training and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).
3. On 9 August 1967, he was convicted by a special court-martial of being absent without leave (AWOL) from 29 May 1967 to 11 July 1967. He was sentenced to perform hard labor for 2 months. On 16 August 1967, the convening authority approved the sentence.
4. On 31 August 1967, he submitted an application for separation due to hardship. His application for a hardship discharge was approved.
5. He was accordingly discharged on 7 September 1967 under the provisions of Army Regulation 635-200, chapter 6, for hardship with a general discharge. He completed 7 months and 27 days of total active service with 43 days of time lost.
6. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
7. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 6 of this regulation, in effect at the time, provides for separation due to dependency or hardship. The regulation provided that hardship existed when, in circumstances not involving death or disability of a member of his family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Service of Soldiers separated because of dependency or hardship under this regulation will be characterized as honorable or under honorable conditions.
8. Army Regulation 635-200, 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions were noted. However, a discharge is not changed for the purpose of obtaining DVA or State benefits.
2. His brief record of service included one special court-martial conviction and
43 days of time lost. As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is not sufficient to warrant an honorable discharge.
3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20110014262
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ABCMR Record of Proceedings (cont) AR20110014262
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