IN THE CASE OF:	   

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002768 


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 his undesirable discharge be upgraded to an honorable or general under honorable conditions discharge.

2.  He states:

   a.  he can't use his Department of Veterans Affairs (VA) benefits so he would like his discharge upgraded to honorable or general under honorable conditions.
   
   b.  he sent records of his court-martial and he talked to his commanding officer about being shipped to another fort (unit) because he felt he wasn't being treated as a Soldier, but as a man of color.  He was one of three and he was the "bulls eye."
   
   c.  he wanted to reenlist, but he changed his mind.  It's not the Army, but it's the people in the Army.  

3.  He provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Certificate of Military Service
* DA Form 20 (Enlisted Qualification Record)
* DA Form 20B (Insert Sheet to DA Form 20)
* Special Court-Martial Order Number 319
* DD Form 47 (Record of Induction)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 600 (Immunization Record)
* DA Form 2658 (Health Record - Abstract of Service)
* DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)
* 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 inducted into the Army of the United States on 23 April 1969.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, UCMJ for wrongfully appearing in the vicinity of Fort Dix Road wearing combat boots, khaki pants, and a civilian shirt.  

4.  His record also reveals a disciplinary history that includes two convictions by special court-martial for the following offenses:

* being absent without leave (AWOL) from 3 December 1969 to 13 January 1970; 16 to 21 January 1970; and 13 to 17 February 1970
* disobeying a lawful order (three specifications)
* missing bed check
* having been placed in arrest in his company area, breaking said arrest

5.  On 14 April 1970, the applicant underwent a psychiatric evaluation and no psychiatric disease was demonstrated on this examination.  The psychiatrist stated the applicant was cleared for separation from the service under administrative action as deemed appropriate by his command.  


6.  His discharge packet is not available.  However, his DD Form 214 shows he was discharged on 28 May 1970 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness for frequent incidents of a discreditable nature with military authorities.  He was issued a discharge under other than honorable conditions (undesirable).

7.  At the time of his discharge, he completed 8 months and 6 days of creditable active service with 150 days of lost time.

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

	a.  his DD Form 214 shows his discharge as under other than honorable conditions so, this means to him that he has a dishonorable discharge under no conditions.

	b.  if this isn't true, it should state general under honorable conditions because that was told to him at his expiration of term of service.

	c.  he doesn't have any benefits and would like to use his VA plan to buy a home, but he can't because of his DD Form 214.

9.  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.

10.  References:

	a.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.


	b.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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.

	c.  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 contends he can't use his VA benefits.  However, The ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for VA benefits.   

2.  His record is devoid of any evidence and he did not provide any evidence that he was ever told he would be issued a general discharge in lieu of an undesirable discharge.  

3.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

4.  His service record shows he received one Article 15, two convictions by a summary court-martial, and a record of 150 days of lost time.  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.  The evidence of record does not indicate 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 or general under honorable conditions.





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)                                         AR20130002768





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ABCMR Record of Proceedings (cont)                                         AR20130002768



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