IN THE CASE OF:
BOARD DATE: 1 May 2012
DOCKET NUMBER: AR20110021492
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 undesirable discharge to an honorable discharge.
2. He states he has health problems due to Agent Orange.
3. He provides 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 applicants military records are not available to the Board. This case is being considered using the DD Form 214 provided by the applicant.
3. The applicant enlisted in the Regular Army on 3 September 1969 for a period of three years.
4. His DD Form 214 shows he was discharged on 4 October 1971 under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability) for unfitness due to an established pattern for shirking with an Undesirable Discharge Certificate.
5. At the time of discharge, he had completed 1 year, 11 months, and 14 days of creditable active service with 18 days of lost time.
6. His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
7. Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.
8. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The fact that the applicant is currently experiencing health problems is unfortunate. However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.
2. In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time. Therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to a general or an 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) AR20110021492
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ABCMR Record of Proceedings (cont) AR20110021492
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