BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021398 


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.

2.  The applicant states he needed to take care of his family.  He further states he would like to be buried with honors for the sake of his family.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 21 September 1954 for a period of 3 years.  He completed training and he was awarded military occupational specialty 111.67 (light weapons infantryman).

3.  On 4 July 1957, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 5 July 1957 for a period of 6 years.

4.  On 5 April 1963, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 6 April 1963 for a period of 6 years and he was promoted to the rank/grade of sergeant (SGT)/E-5.

5.  Between April 1964 and August 1964, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions (7 April 1964, 7 May 1964, and 10 August 1964) for failing to go to at the time prescribed to his appointed place of duty.

6.  On 5 September 1964, he was convicted by a summary court-martial of breaking restriction.  He was sentenced to reduction to E-4 and a forfeiture of pay for 1 month. 

7.  Records show he had 17 dishonored checks between November 1963 and November 1964 totaling $354.73.

8.  On 18 December 1964, he was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty.  He was sentenced to restriction and a forfeiture of pay for 1 month.

9.  On 5 January 1965, he was convicted by a summary court-martial of being absent without leave (AWOL) from 24 to 28 December 1964.  He was sentenced to reduction to E-1 and forfeiture of pay for 1 month. 

10.  Discharge proceedings were subsequently initiated to separate him under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited his bad checks and letters of indebtedness.

11.  After consulting with counsel and being advised of his recommended separation for unfitness, the applicant requested a hearing by a board of officers.


12.  However, on 5 January 1965, having been counseled and advised of the basis for the action to separate him under the provisions of Army Regulation
635-208, the applicant elected to waive a hearing by a board of officers.  He acknowledged he understood in the event he was issued an undesirable discharge 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 also elected not to submit a statement in his own behalf.  

13.  On 21 January 1965, the separation authority, a brigadier general, approved the recommendation for separation under the provisions of Army Regulation
635-208 for indebtedness and directed the issuance of an Undesirable Discharge Certificate.

14.  On 2 February 1965, he was discharged under the provisions of Army Regulation 635-208 and assigned a separation program number (SPN) of 28F (established pattern for showing dishonorable failure to pay just debts).  He completed 10 years, 4 months, and 8 days of total active service with 4 days of time lost.

15.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness.  Individuals would be discharged by reason of unfitness with an undesirable discharge when it had been determined an individual's military record was characterized by discredit, including an established pattern showing dishonorable failure to pay just debts.

17.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority 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 he needed to take care of his family was noted.  However, his record of service during his last enlistment included three NJPs, three summary court-martial convictions, 4 days of lost time, and numerous bad checks.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran's 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 Department of Veterans Affairs.

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)                                         AR20120021398



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ABCMR Record of Proceedings (cont)                                         AR20120021398



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