IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005363 


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 was young, stupid, and got drugs from the guys who came back from Vietnam.  He thought those guys were great so he tried to be like them.  He got "busted" for pot in Oklahoma, but it wasn't even his pot.  It belonged to a friend who returned from Vietnam.  

3.  He provides a self-authored statement.

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 born on 9 December 1954 and he enlisted in the Regular Army on 16 July 1972 at 17 years old.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 63A (Mechanical Maintenance Apprentice).   

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on five occasions for the following offenses:

* Disobeyed a lawful order (DOLO) on 15 May 1973
* Absented himself from his unit on 28 December 1973
* Failed to obey a lawful order (FOLO) on 22 January 1974
* FOLO on 28 March 1974
* Failed to obey a lawful command
* DOLO on 10 May 1974 (two specifications) 

4.  His DA Form 20 (Enlisted Qualification Record) indicates he was confined by civil authorities on 24 October 1973 for one day.

5.  On 19 June 1974, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, for unfitness due to his repeated habitual shirking and unwillingness to conform to military standards.

6.  On an unknown date, the applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected to submit statements in his own behalf.  He also acknowledged that he might receive an undesirable discharge, that he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.  He stated he felt he should be out of the Army because he was tired of the same old thing every day.  He was also tired of wearing the same old green uniform, knowing he had to be here (in the Army) or get punished for it, and he was tired being bossed around by so many different people.  He didn't feel he should be "thrown out" with an undesirable discharge because he wasn't an undesirable person before he came in the Army and he didn't plan on being one when he got out.  

7.  On 14 August 1974, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

8.  He was discharged on 16 August 1974 with an undesirable discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 1 month, and 2 days of total active service with 2 days of lost time.

9.  He provided a self-authored statement in support of his claim.  He stated:

	a.  he enlisted in the Army in 1972 during the Vietnam War and he was stationed at Fort Sill, OK;

	b.  he was a driver for his captain and he worked as a typist within a 2nd Battalion;

	c.  some of the guys who returned from Vietnam had him try dope and it was all downhill from there;

	d.  he's now disabled due to a back injury and he would deeply appreciate any help he could get to upgrade his discharge; and

	e.  he just found some paperwork regarding a Department of Veterans Affairs (VA) loan from back in 1996.  He was in a coma during that time due to a motorcycle accident and he has trouble remembering things.

10.  On 24 September 1982, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

12.  Army Regulation 635-200, paragraph 3-7, 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 evidence of record shows the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  

2.  The fact that the applicant is currently experiencing medical 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.  

3.  The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-5a(1) were conducted in accordance with law and regulations applicable with no indication of procedural errors which would tend to jeopardize his rights.  

4.  His service record included five Article 15s and confinement by civil authorities for one day.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

6.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20120005363





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ABCMR Record of Proceedings (cont)                                         AR20120005363



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