IN THE CASE OF:	  

		BOARD DATE:	    29 January 2013

		DOCKET NUMBER:  AR20120011911 


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, in effect, reconsideration of his earlier request for an upgrade of his undesirable discharge.

2.  The applicant states, in effect:

* He just wants benefits that are due to him; he was a natural born leader and loved the Army
* It is an injustice for him to continue to suffer the adverse consequences of his discharge
* The Department of Veterans Affairs (VA) will not grant him benefits because his second period of service was not honorable

3.  The applicant provides:

* VA rating decision, dated 24 March 2010
* Hospital discharge instructions, dated 16 July 2011
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 13 August 1963, 12 October 1961, and 24 November 1958

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110022848 on 10 May 2012.

2.  The applicant provides a new argument related to VA benefits and a VA rating decision.  This is considered new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 3 February 1958. He entered active duty for training (ACDUTRA) on 25 May 1958.  He completed his training and was awarded military occupational specialty 640.00 (Light Vehicle Driver).

4.  He was honorably released from ACDUTRA on 24 November 1958 to the control of the USAR.  His DD Form 214 for this period of service shows he completed 6 months of active service.

5.  He enlisted in the Regular Army on 18 November 1960.  He subsequently served in Germany from 14 July 1961 to 15 October 1962.

6.  While in Germany, he was discharged from active duty on 12 October 1961 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he completed 10 months and 25 days of net active service this period.

7.  He reenlisted on 13 October 1961 for a period of 6 years.  He was reassigned to Fort Benning, GA.  He was promoted to the rank/grade of specialist four (SP4)/E-4 on 24 November 1961.

8.  On 17 November 1962, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 4 to 9 November 1962.  The court sentenced him to a reduction to private first class (PFC)/E-3 and a forfeiture of pay for one month.  The convening authority approved the sentence on 19 November 1962.

9.  On 23 April 1963, at Fort Knox, KY, he was convicted by a special court-martial (SPCM) of one specification of being AWOL from 10 December 1962 to
2 March 1963.  The court sentenced him to a reduction to private (PV1)/E-1, a forfeiture of pay per month for 4 months, and hard labor without confinement for 3 months.  The convening authority approved the sentence on 27 April 1963.

10.  On 12 July 1962, also at Fort Knox, he was convicted by an SPCM of one specification of being AWOL from 26 April 1963 to 13 June 1963.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of pay per month for 3 months.  The convening authority approved his sentence on
16 July 1963.

11.  Shortly before his conviction, on 8 July 1962, he underwent a psychiatric evaluation for unfitness.  The military examiner stated the applicant had no disqualifying mental or physical defect sufficient to warrant disposition through medical channels.  He was mentally responsible and able to distinguish right from wrong and adhere to the right.  He had the mental capacity to understand and participate in board proceedings.  The military examiner opined the applicant related his AWOLs to his wife at the time.  He had a passive - aggressive behavior and he was unmotivated for service.  The medical officer recommended the applicant's separation.

12.  On 8 July 1963, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) by reason of unfitness.  The immediate commander recommended the issuance of an Undesirable Discharge Certificate.

13.  On 19 July 1963, the applicant acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood if an undesirable discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

14.  Additionally, on 19 July 1963, he executed a statement of waiver.  He stated he was fully aware of the 15-day written notice normally granted prior to a hearing; however, he consented to waiving this period and relegated to a board of officers and his defense counsel to designate a suitable hearing convened on any date which is appropriate, if applicable.

15.  On 20 July 1963, the applicant's immediate commander initiated separation action against the applicant by reason of unfitness.  He recommended an undesirable discharge.  The immediate commander opined the applicant was not the caliber of personnel worthy of retention in the military.  He was not worthy of reassignment either because he would probably revert to AWOL instead of duty. He had a total of 215 days of time lost due to his AWOL time.

16.  On 23 July 1963, the applicant's intermediate commander recommended the waiver of a hearing before a board of officers be approved.  He indicated that the applicant's complete lack of motivation for duty negated the usefulness of any future rehabilitative efforts.  The intermediate commander recommended immediate elimination with the issuance of an Undesirable Discharge Certificate. 

17.  On 5 August 1963, the separation authority accepted the waiver of a hearing before a board of officers.  He also approved the applicant's discharge action under the provisions of Army Regulation 635-208 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  On 13 August 1963, the applicant was accordingly discharged from the Army.

18.  The DD Form 214 he was issued during this period confirms he was discharged under the provisions of Army Regulation 635-208 with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms he completed 1 year, 1 month, and 26 days of net active service this period with 248 days of time lost.

19.  On 23 September 1964, after careful consideration of his military records and all other available evidence, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

20.  He submitted:

	a.  Multiple self-authored letters describing his military service and the challenges he is currently having with the VA.

	b.  VA rating decision, dated 24 March 2010, that shows the applicant is barred from receiving benefits for his second period of service because the characterization of his service is under other than honorable conditions.

	c.  Hospital discharge instructions, dated 16 July 2011, that shows a diagnosis of vertigo.

21.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This 

regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge.

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.

	a.  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.

	b.  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 contention that his discharge should be upgraded so he may receive VA benefits was carefully considered.  However, there is insufficient evidence to grant him the requested relief.

2.  His record reveals a disciplinary history that includes four periods of AWOL, two periods of confinement, and three convictions by court-martial.  Accordingly, his chain of command recommended his elimination from the Army.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is 
not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

4.  There is no evidence in the available record and the applicant failed to provide any substantiating evidence that shows his extensive misconduct was a result of any reasons except the choices he made.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 to amend the decision of the ABCMR set forth in Docket Number AR20110022848, dated 10 May 2012.



      _______________________
               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)                                         AR20120011911



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ABCMR Record of Proceedings (cont)                                         AR20120011911



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