IN THE CASE OF:
BOARD DATE: 19 June 2012
DOCKET NUMBER: AR20110024099
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 his general discharge be upgraded to honorable.
2. The applicant states, in effect:
* the State of Nevada will not honor his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) because his service is characterized as "under honorable conditions"
* his DD Form 214 has to show his service was honorable for him to get the property and department of motor vehicles tax benefit
* he is 100% disabled
3. The applicant provides:
* DD Form 214
* Marriage certificate
* Department of Veterans Affairs (VA) documentation
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 applicant enlisted in the Regular Army on 3 July 1965 for a period of
3 years. He completed the training requirements and he was awarded military occupational specialty 67N (UH-1 Helicopter Repairman). He arrived in Vietnam on 15 December 1965.
3. Between 12 March 1967 and 19 June 1967, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for:
* disobeying a lawful order
* failing to report to his place of duty during an alert
* being absent from an alert and further absent from the billets during the remainder of the night on 12 and 13 June 1967
* sleeping on guard duty
4. He departed Vietnam on 9 July 1967.
5. On 29 March 1968, he was convicted by a special court-martial of being absent without leave (AWOL) on three occasions (3 to 9 December 1967,
28 December 1967 to 23 January 1968, and 2 to 26 February 1968). He was sentenced to be reduced to E-1, confined at hard labor for 6 months, and to forfeit $68.00 pay for 6 months. On 1 April 1968, the convening authority approved the sentence.
6. On 29 July 1968, NJP was imposed against the applicant for violating a lawful regulation.
7. On 3 September 1968, he was convicted by a special court-martial of three specifications of failing to go at the time prescribed to his appointed place of duty. He was sentenced to confinement at hard labor for 3 months and to forfeit $90.00 pay for 3 months. On 17 September 1968, the convening authority approved the sentence.
8. On 15 January 1969, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 5, as
an overseas returnee with a General Discharge Certificate. He completed
2 years, 10 months, and 25 days of creditable service with 229 days of lost time.
9. He provided VA documentation which shows he was granted service connection for:
* loss of use of bilateral lower extremities, to include peripheral vascular disease of both lower extremities (100%)
* neuropathy as secondary to service connected disability of hypertension and diabetes mellitus type II (30%)
10. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11. Army Regulation 635-200, chapter 5, in effect at the time, set forth the conditions under which enlisted personnel might be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government. Section VII (Separation of enlisted personnel with less than 3 months remaining to serve) pertained to overseas returnees.
12. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. A discharge is not upgraded for the purpose of making an individual eligible for State or other benefits.
2. The applicant's record of service included five NJPs, two special court-martial convictions, and 229 days of lost time. As a result, the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant 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) AR20110024099
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ABCMR Record of Proceedings (cont) AR20110024099
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