BOARD DATE: 12 December 2013
DOCKET NUMBER: AR20130007075
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 that his undesirable discharge (UD) be upgraded to general discharge.
2. The applicant states his discharge has caused him many struggles. He does not have any Department of Veterans Affairs (VA) benefits. He wants to improve his life by getting a VA loan to go to school and to start a trucking business.
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. On 18 April 1969, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 52B (Power Generator Equipment Operator/Mechanic). He was subsequently assigned to Alaska.
a. On 28 September 1969, he was assigned to the 12th Aviation Company for duty as an aircraft fuel specialist.
b. On or about 9 October 1969, he accepted nonjudicial punishment (NJP) for disobeying a lawful order.
c. On 25 November 1969, he was assigned to the 172nd Infantry Brigade.
d. On 5 February 1970, he accepted NJP for being disrespectful in language toward his sergeant who was in the execution of his office.
e. On 8 April 1970, he accepted NJP for being drunk in public and for unlawfully having another person's identification card.
f. On 11 June 1970, he accepted NJP for being disrespectful in language toward a first lieutenant.
g. On 7 July 1970, he accepted NJP for being disrespectful in language toward a sergeant who was in the execution of his office.
3. The applicant's DA Form 20 (Enlisted Qualification Record) indicates that he was placed in civilian confinement on 1 October 1970.
4. On 1 February 1971, the applicant's commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-206 due to conviction by civilian court. The commander stated the applicant had been convicted on a civil charge of armed robbery and assault with a deadly weapon. He was sentenced to 5 years in confinement with 2 years suspended.
5. On 2 April 1971, the separation authority approved the recommendation for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).
6. Accordingly, he was discharged on 8 April 1971. He had completed a total of 1 year, 5 months, and 23 days of creditable active service and he had 179 days of lost time due to being AWOL and in confinement.
7. On 22 November 1977, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB concluded he was properly and equitably discharged due to a civilian conviction and denied his request.
8. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provided that members convicted by civil authorities would be considered for separation. A UD was normally considered appropriate.
9. Army Regulation 635-200 contains the general guidance on the separation of enlisted personnel. 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 applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would jeopardize his rights. The type of discharge and the reasons therefore were appropriate considering all of the facts of the case.
2. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, it would not be appropriate to upgrade his characterization of service.
3. The applicant's desire to obtain VA benefits is not justification to upgrade his discharge.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20130007075
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ABCMR Record of Proceedings (cont) AR20130007075
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