BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110022523 


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 a general under honorable conditions discharge.  

2.  He states he had always served honorably and had performed all the duties of his military occupational specialty (MOS) with the utmost respect for his responsibilities as an enlisted member of the U.S. Army.  At no time was he ever disciplined for not being a good Soldier.  

3.  He provides:

* Two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim)
* Three letters from the VA
* VA Extract from Title 38, Code of Federal Regulations 3.12
* VA Form 21-526 (Veteran’s Application for Compensation and/or Pension)
* VA Form 21-2142 (Authorization and Consent to Release Information to the VA)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Birth certificate
* Social security number printout from the Social Security Administration



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 15 April 1969 for a period of three years.  At the completion of initial entry training, he was awarded MOS 63B (Wheeled Vehicle Repairman).  He served in Germany from 2 February to 21 June 1970 and in Vietnam from 15 August 1970 to 2 July 1971.  The highest rank/pay grade he attained while on active duty was specialist four/E-4.  However, at the time of his discharge he held the rank/pay grade of private/E-1.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on four separate occasions for the following offenses:

* destroying a mattress, of a value of about $24.50, without proper authority through neglect
* wrongfully appropriating a truck, of a value of about $3,200, the property of the military
* being absent from his place of duty 
* violating a lawful general regulation by entering an off limits area
* failing to obey a lawful order
* breaking restriction
* being absent from his place of duty without authority 

4.  A letter, dated 16 April 1971, indicated the applicant had been involved in the 93rd Engineer Battalion Amnesty Program from 29 March to 16 April 1971.  The applicant was admitted to the withdrawal ward on 12 April 1971 and he unsuccessfully completed that portion of the program.  The letter also indicated the applicant’s failure was due to him being absent without leave on two occasions (13 and 15 April 1971).  In the opinion of the personnel responsible for the management of the program, the applicant had returned to heroin use, had negative motivation, was belligerent and not responsive to direction, was unable to complete his military service, was unable to refrain from continued physiological dependency on heroin, and was unlikely to rehabilitate or develop into a satisfactory member of the military.  It was recommended the unit initiate separation action under Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).

5.  On 20 April 1971, he underwent a psychiatric evaluation and was diagnosed as having an immature personality.  The evaluation revealed the applicant:

* was given to impulsive, immature behavior and had received numerous Article 15s for such behavior
* had a history of hard drug abuse and was admitted to the Amnesty Program where he failed to abide by minimal disciplinary standards 
* had no disqualifying mental defects sufficient to warrant disposition through medical channels
* was mentally responsive, able to distinguish right from wrong and adhere to the right
* had the mental capacity to understand and participate in board proceedings

6.  On 19 May 1971, the company commander notified the applicant of the proposed action to effect his separation from the Army under the provisions of Army Regulation 635-212 for unfitness.  The commander stated this action was based on the applicant’s poor record of duty performance and inability to refrain from the use of physically dependant drugs.  The applicant was advised of his rights.

7.  The applicant’s election of his rights and the separation authority’s approval are not available. 

8.  Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, Special Orders Number 184, dated 3 July 1971, indicate the applicant was discharged from active duty on 3 July 1971 under the provisions of Army Regulation 635-212 for unfitness with an under other than honorable conditions (undesirable) discharge.  

9.  At the time of his discharge, he was credited with completion of 2 years, 2 months, and 18 days of net active service.

10.  On 2 May 1973, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

11.  His DA Form 20 (Enlisted Qualification Record) shows he received conduct and efficiency ratings of "excellent" and "unsatisfactory" during his tenure on active duty.  
12.  He provided a VA Form 21-4138, dated 27 March 2011, which he stated:

   a.  he became addicted to smoking heroin in Vietnam.  

   b.  he wanted to end this drug use so he sought the assistance of a military chaplain.  The chaplain put him on a program to help him quit smoking heroin, but it provided little support or guidance.  Also, the chaplain was reporting all of his information to military authorities at the same time.
   
   c.  he was sent to a program at Cam Ranh Bay which was followed by a flight back to Fort Lewis, WA where he was discharged with a UOTHC discharge.
   
   d.  he never used heroin again after he left the military.
   
   e.  his trust was broken by the chaplain.  
   
13.  He provided a second VA Form 21-4138 informing the VA he didn’t have his military separation document other than the DD Form 214 he previously submitted.  He let them know the social security number on his DD Form 214 was incorrect which may be an issue on their record search.  He also stated he had submitted all his medical records.

14  He also provided letters from the VA indicating:  

	a.  On 16 February 2011, a Veterans Service Center Manager informed the applicant that his claim for benefits had been received and he was given the requirements to receive VA benefits.  

   b.  On 11 April 2011, a Veteran Services Specialist of Father Bill’s Mainspring informed the VA Regional Office, Boston, MA, that the applicant’s medical records were attached.  

	c.  On 19 April 2011, a Veterans Service Center Manager informed the applicant of the actions that would be taken with his claim and what he could do to assist.  

   d.  On 24 June 2011, VA Regional Office, Boston, MA informed the applicant that his military service for the period 15 April 1969 through 3 July 1971 wasn’t honorable for VA purposes.  Therefore, his dependents weren’t eligible for any VA benefits for this period of military service.  He was advised he could be eligible for treatment at a VA hospital for any condition determined to be related to his military service.  

15.  Army Regulation 635-212 set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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's contentions that he always served honorably, performed all the duties of his MOS with the utmost respect, and no time was he ever disciplined for not being a good Soldier are acknowledged.  However, his service record indicates he received four Article 15s for various offenses and was enrolled in an Amnesty Program for drug abuse where he failed to complete the program.  In addition, his service record indicates he received conduct and efficiency ratings of "unsatisfactory."

2.  His letters from the VA were acknowledged.  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.  

3.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of general discharge and characterized his service as undesirable.


4.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his discharge from undesirable to general under honorable conditions.  

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)                                         AR20110022523





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ABCMR Record of Proceedings (cont)                                         AR20110022523



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