IN THE CASE OF:	  

		BOARD DATE:  6 September 2012

		DOCKET NUMBER:  AR20120005233 


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 honorable.

2.  He states he wanted to go to college, not to war.  He asked not to be reinstated.  He wanted to be out of the Army and "they" would not discharge him. 
He lost his father when he was 9 years old and his mother when he was 14 years old; he was cared for by his grandmother and lost her.  He has no siblings.  He offers that he now has cancer and is in need of medical treatment, but he has no medical insurance.

3.  He provides:

* Congressional correspondence
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Application Summary for Disability Insurance Benefits and Supplemental Security Income
* medical documents from St. John Medical Center

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 19 July 1967.

3.  On 31 October 1967, nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty.

4.  On 29 October 1992, the Commander, Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY, notified the applicant that he was being considered for separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-5, section II (Conviction by Civil Court).

5.  On 1 December 1992, the commander stated the applicant appeared in the U.S. District Court, Springfield, MO, and pled guilty to the Federal charge of conspiracy to import marijuana.  He was sentenced to 4 years of confinement followed by supervised release for a term of 4 years.  He further stated the applicant was absent without leave and/or confined in the hands of civilian authorities from 1 January 1968 to the present.

6.  On 12 November 1992, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by an administrative separation board and to consult with and be represented by counsel.

	a.  He acknowledged he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further understood that as the result of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He understood that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after his discharge.  He elected to submit a statement on his behalf.

	b.  He stated he was drafted into the Army and assigned to special forces.  He explained that he told the Army from the beginning that he wanted to apply for conscientious objector status.  He also said he asked to be transferred to any unit other than combat because of his beliefs.  He added he also applied twice for a discharge on the grounds that he was a sole-surviving son.  He said his discharge requests were denied and his conscientious objector status was never forwarded.  He offered that he had no choice in his mind at the time but to leave.

7.  On 13 January 1993, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14 and directed the issuance of a discharge under other than honorable conditions.

8.  His DD Form 214 shows he was discharged on 19 February 1993 under the provisions of Army Regulation 635-200, chapter 14, by reason of civilian conviction with an under other than honorable conditions character of service.  He was credited with completing 5 months and 12 days of active service with lost time from 1 January 1968 to 18 July 1969 and 19 July 1969 to 19 February 1993.

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  The applicant provided his Application Summary for Disability Insurance Benefits and Supplemental Security Income showing he applied for benefits through social security.

11.  He also provided documents from St. John Medical Center that included education materials and information regarding his injury/illness.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter.  
	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.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant is currently experiencing an unfavorable economic situation and is in need of medical benefits is unfortunate.  However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

3.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled 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 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)                                         AR20120005233



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ABCMR Record of Proceedings (cont)                                         AR20120005233



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