IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110015177 


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.

2.  The applicant states that he was told at the time of his discharge that he could request a change in character after one year and be eligible to reenlist.  The applicant continues that he would like his records corrected so that he may:

* qualify for Department of Veterans Affairs (DVA) medical benefits 
* participate in local DVA activities
* qualify for a proper military burial  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 16 February 1963.

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 11 August 1961 for a 3-year term of enlistment.  He successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 112.00 (Heavy Weapons Infantry).  

3.  On 26 April 1962, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) for the period 12 April 1962 through 18 April 1962.

4.  On 7 June 1962, the applicant was convicted by a special court-martial of disobeying a lawful order from a superior noncommissioned officer (NCO).

5.  On 19 September 1962, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.

6.  On 28 September 1962, the applicant was convicted by a special court-martial of being absent from his place of duty for the period 2230 hours to 2325 hours on 
30 August 1962.  

7.  The applicant accepted NJP under the provisions of Article 15 of the UCMJ on the following dates:

* 13 November 1962, for violation of a lawful order 
* 23 November 1962, for violation of a lawful order

8.  On 17 December 1962, the applicant underwent a mental evaluation by a military psychiatrist who determined that he had no physical or mental defects that warranted a medical discharge.  The applicant was found to be mentally responsible, and was able to distinguish right from wrong and to adhere to the right.  

9.  On 20 December 1962, the applicant was convicted by a special court-martial of two specifications of failing to obey a lawful order.



10.  On 27 December 1962, the applicant’s commander signed an elimination packet on the applicant recommending separation under the provisions of Army Regulation 635-208 (Personnel Separations) for unfitness.  The reasons cited by the commander were the applicant being uncooperative.  He constantly shirks his duties and displays an impertinent attitude towards superiors.  He must be continuously supervised, or he would not accomplish his duty.  His complete disregard for the military authority has caused him to become a detriment to both the unit and the U.S. Army.  The applicant was advised of his rights and the effect of a waiver of those rights by his company commander.  He was also advised of the basis for his separation under the provisions of Army Regulation 635-208.  The applicant declined the opportunity of requesting military counsel; waived consideration of his case by a board of officers; and did not desire to provide a statement in his own behalf.

11.  On 22 January 1963, the appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness.  On 16 February 1963, he was separated after completing 1 year, 5 months, and 13 days of creditable active service with 23 days of lost time due to AWOL and confinement.

12.  Army Regulation 635-208, in effect at that time, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  At the time, an undesirable discharge was normally issued.

13.  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 member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded so that he may be entitled to DVA benefits.  However, the ABCMR does not correct records solely for the purpose of obtaining eligibility for DVA benefits.  In addition, granting veteran's benefits is not within the purview of this Board and any questions regarding eligibility should be addressed to the DVA.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s military personnel service records show that:

* he was convicted by a summary court-martial
* he was convicted by three special courts-martial
* he received three Article 15’s
* he had one instance of AWOL during his military service

Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general or honorable discharge.

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)                                         AR20110015177





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ABCMR Record of Proceedings (cont)                                         AR20110015177



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