BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110018250 


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 an upgrade of his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states there was a confrontation between himself and the first sergeant.  An upgrade of his discharge would allow him to receive medical care at the Veteran Administration Hospital and be placed in a homeless facility.  He would also be allowed to apply for rehabilitation, counseling, and other assistance.

3.  The applicant provides 3 letters of support.

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 record shows he enlisted in the Regular Army on 6 July 1972.  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  His record reveals a disciplinary history that includes six nonjudicial punishments (NJP):

* absent without leave (AWOL) (2 offenses)
* failure to obey a lawful order (2 offenses)
* failure to go at a prescribed time to his appointed place of duty
* possession of a controlled drug, marijuana

4.  The facts and circumstances of his discharge are not available; however, his record contains a written statement, dated 19 September 1974, in which the applicant contends that over the past two years he had to help his unemployed mother take care of his brother and sister and get them through school.  His company commander had done everything within his power to get him out so he signed the chapter 13 and respectfully requested a general discharge.

5.  A narrative description for separation shows the reason for his discharge as "unfitness-shirking" and that he was discharged under the provisions of chapter 13-5a, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

6.  He provided letters of support which express concern for the applicant's declining health and requesting his discharge be upgraded so he can receive veteran's health care benefits.
7.  On 18 October 1974, he was discharged.  His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5(a)(4), by reason of unfitness.  He completed 2 years, 3 months, and 13 days of creditable active duty service.

8.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.

	a.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a) provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.
	b.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 requests his discharge be upgraded to honorable in order to qualify for veteran's health care benefits.

2.  His record is void of the complete facts and circumstances that led to his discharge.  However, the available evidence reveals a pattern of indiscipline, and/or misconduct including NJP, AWOL, and possession of marijuana.  His DD Form 214 shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200, unfitness, with an under other than honorable conditions discharge.

3.  Lacking evidence to the contrary, his discharge was in accordance with the applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20110018250





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ABCMR Record of Proceedings (cont)                                         AR20110018250



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