IN THE CASE OF:	  

		BOARD DATE:	    18 July 2013

		DOCKET NUMBER:  AR20120021788 


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 undesirable discharge (UD).

2.  The applicant states, in effect:

   a.  He voluntarily enlisted in 1965 with the intention of going to Vietnam.  He served honorably and reenlisted.  He was preparing to go to Vietnam a second time when charges were filed against him.  He became discontented and discouraged.  At the time, he was having serious mental issues.  He lost his way, and his world appeared to be crumbling around him.  He was led astray and the end result was a civil conviction.
   
   b.  Now he has ringing in his ears and spots on his body that need medical attention; he needs Department of Veterans Affairs (VA) benefits due to the illnesses that were caused by the Vietnam war.  He also believes that he is suffering from post-traumatic stress disorder and Agent Orange.  He has been dealing with the VA for more than 40 years.  He has been refused, denied, and out-right rejected.  Hope is all that he has left and he now seeks assistance and cooperation in bringing this chapter of his life to a close.

3.  The applicant provides:

* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* correspondence written between him and the VA

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 completed an honorable period of Regular Army (RA) service from 28 September 1965 to 18 November 1968.  During this period of service he served in Vietnam from 6 April 1966 through 5 April 1967.

3.  On 19 November 1968, he reenlisted in the RA in military occupational specialty 13A (Field Artillery).

4.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 20 December 1968, for failure to go to his appointed place of duty
* 8 April 1969, for failure to go to his appointed place of duty (twice)
* 11 July 1969, for failure to go to his appointed place of duty
* 28 April 1970, for being absent without leave (AWOL)

5.  On 14 November 1969, the applicant was notified of his commander's intent to initiate action to bar him from reenlistment due to unsuitability.  The applicant acknowledged receipt of the bar and elected not to submit statements in his own behalf. 

6.  Special Court-Martial Order Number 185, Headquarters, 82d Airborne Division Artillery, Fort Bragg, NC, dated 17 December 1969, shows the applicant pled guilty and was convicted by a special court-martial of one specification of being AWOL from on or about 4 November to 13 November 1969.  The court sentenced him to restriction to his battery area for 60 days.



7.  On 16 November 1970, the applicant entered a guilty plea for armed robbery in the State of North Carolina.

8.  On 20 November 1970, the State of North Carolina sentenced the applicant to 7 to 10 years in the State Prison.

9.  On 24 November 1970, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for conviction by a civil court.

10.  On 27 November 1970, the applicant acknowledged receipt while in civilian custody.  He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also indicated he did not want to appeal his civilian conviction.

11.  On 6 January 1971, the separation authority, a major general, approved the applicant's discharge under the provisions of Army Regulation 635-206 and directed the issuance of an Undesirable Discharge Certificate.

12.  On 13 January 1971, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 6 months, and 22 days of net service this period for a total of 4 years, 8 months, and 13 days of creditable active service.  He had lost time for the period 4 through 12 November 1969 and from 24 June 1970 to 13 January 1971.

13.  On 2 August 1977 and 20 July 1979, the Army Discharge Review Board denied his requests for an upgrade of his UD.

14.  The applicant provides correspondence written between him and the VA.  This correspondence shows the VA has denied his request for assistance on multiple occasions based on his characterization of service.

15.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  A UD was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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 request that his UD to be upgraded was carefully considered.

2.  The applicant’s record shows he was charged and convicted by a civil court of armed robbery and sentenced to 7 to 10 years in civil confinement.  Accordingly, his chain of command initiated separation action against him.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's 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 either an honorable or a general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.
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)                                         AR20120021788



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ABCMR Record of Proceedings (cont)                                         AR20120021788



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