IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110018459 


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, in effect:

* his undesirable discharge be upgraded to honorable
* he be paid 13 months of back pay and other entitlements 

2.  The applicant states he:

* was told his undesirable discharge would be changed to an honorable discharge after 6 months
* was told his pay vouchers were lost
* is owed approximately 13 months of pay for service while in Leavenworth, KS and he is entitled to other military benefits
* needs his records corrected so that he may be able to look into collecting the pay he is owed
* is retired, in bad health, and needs all of the help he can get to include veterans' benefits

3.  The applicant provides no documentary evidence.

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 was inducted into the Army of the United States on 9 November 1966.  He completed his training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 10 October 1967, he was convicted by a special court-martial of being absent without leave (AWOL) from 18 February to 13 September 1967.  He was sentenced to be confined at hard labor for 6 months and a forfeiture of $60.00 pay for 6 months.  On 12 October 1967, the convening authority approved the sentence but suspended the forfeiture of pay for 6 months.  The unexecuted portion of the sentence was remitted.

4.  On 28 May 1968, he was convicted by a special court-martial of being AWOL from 23 November 1967 to 12 May 1968.  He was sentenced to be confined at hard labor for 6 months and a forfeiture of $63.00 pay for 6 months.  On 5 June 1968, the convening authority approved the sentence.

5.  His records show he was confined at Fort Leavenworth, KS, from 21 June to 
1 November 1968.

6.  On 21 April 1969, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  

7.  On 30 April 1969, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

8.  On 4 June 1969, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.



9.  On 11 June 1969, he was discharged under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 3 months and 15 days of total active service with 828 days of time lost (206 were lost subsequent to his normal expiration term of service date).

10.  His pay records are not available.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

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.

15.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

16.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told his discharge would be changed to honorable after 6 months.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  A discharge is not upgraded for the purpose of obtaining veterans' benefits.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  His brief record of service included two special court-martial convictions and 828 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

6.  He contends he is owed 13 months of back pay.  However, since it is now over 42 years after he was discharged, the doctrine of laches applies in this case.  Therefore, there is insufficient equitable or legal basis for granting the applicant's requested relief for back pay.

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)                                         AR20110018459



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ABCMR Record of Proceedings (cont)                                         AR20110018459



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