BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120006286 


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:

	a.  he heard several people speak about how Vietnam veterans were mistreated and were not getting their benefits.  

	b.  he understands there are many new benefits available for veterans as well as medical care.  He feels that since he served all his time in Vietnam, even though he received a dishonorable discharge, he should be able to reap some of the benefits afforded to veterans.

	c.  in the last 13 years, he has undergone two open heart surgeries and had many other medical procedures.  He had very little resources to pay for these medical issues and he feels he might be able to get some help from the Department of Veterans Affairs (VA).

	d.  he now suffers from chronic obstructive pulmonary disease and relies on oxygen every day to help him breathe.  Medicare and Social Security do not cover everything.  He must cut his usage of some of his medicine to make them last the entire month.  

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), congressional correspondence, and a self-authored statement, dated 30 October 2011.

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.  W	hile 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 13 December 1946 and he was inducted into the Army of the United States on 18 January 1966 at 19 years of age.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  

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

* being absent without leave (AWOL) from 27 to 29 March 1967
* through neglect missing flight Y239 which it was his duty to make
* being AWOL from 4 May to 4 June 1967
* disobeying a lawful command from his superior noncommissioned officer

4.  His record also reveals a disciplinary history which includes two convictions by special court-martial and one conviction by summary court-martial for being AWOL for the periods:

* 7 July to 25 November 1966
* 13 June to 8 August 1967
* 22 August 1967 to 4 January 1968
* 23 November to 9 December 1968

5.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 4 May 1968 to 16 June 1969.  
6.  On 23 May 1969, he underwent a psychiatric examination.  The psychiatrist found the applicant met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and there was no psychiatric disease or defect which warranted disposition through medical channels.  In addition, the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The psychiatrist recommended the applicant be administratively separated from the military under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) because of unfitness.  

7.  On an unknown date, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-212 for unfitness – pattern of shirking.  The applicant's election of his rights is not available.  

8.  On 18 May 1969, the unit commander recommended the applicant be eliminated from the service by reason of unfitness.  The unit commander recommended this action because of the applicant's complete and recurring disrespect for military authority.  The unit commander stated the applicant had habitually shirked his duties and it was necessary to provide constant supervision in order for him to complete the simplest task.  

9.  The separation authority waived the rehabilitation requirement, approved the applicant’s discharge under the provisions of Army Regulation 635-212 due to unfitness, and directed issuance of an Undesirable Discharge Certificate.

10.  On 11 July 1969, he was discharged under the provisions of Army Regulation 635-212, for unfitness, with an undesirable discharge.  He was credited with completion of 1 year, 9 months, and 22 days of active service.  He had approximately 609 days of lost time.  His DD Form 214 does not indicate any lost time.

11.  He provided a self-authored statement in support of his claim in which he stated:

	a.  he was drafted, served his full 2-year obligation, and he did what was expected of him as a Soldier.

	b.  he was awarded a Purple Heart and Combat Infantryman Badge.

	c.  he was 19 years old and served in Vietnam for 15 months.  During this time, his mother died, his infant daughter died, his uncle was murdered within 6 months, and his marriage failed.

	d.  he was emotionally unable to carry along with being so far from home and family.  He was not mature enough to handle all of this and the war as well.  He felt pressured to accept the dishonorable discharge back in 1969.

12.  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.

13.  Army Regulation 635-212 set for the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(4) of the regulation provided that members involved in an established pattern for shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.  

14.  Army Regulation 635-200 sets forth the basic policy 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.

15.  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 applicant’s discharge under the provisions of Army Regulation 635-212, by reason of unfitness, was administratively correct and in conformance with applicable regulations in effect at the time.  

2.  The fact that the applicant is currently experiencing difficulty obtaining healthcare 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.  His statements regarding the loss of his family members are acknowledged. While the Board is empathetic, it does not upgrade discharges for the purposes of obtaining eligibility for benefits.  

4.  The applicant’s service record shows he received four Article 15s for various offenses, two convictions by a special court-martial, and one summary court-martial for being AWOL.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general under honorable conditions discharge.  

5.  Records show the applicant was age 20 years 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 their military service obligations.  

6.  The evidence of record does not indicate that the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to honorable.

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)                                         AR20120006286





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ABCMR Record of Proceedings (cont)                                         AR20120006286



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