IN THE CASE OF:
BOARD DATE: 6 February 2014
DOCKET NUMBER: AR20130009339
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 (UD) be upgraded to a general discharge (GD).
2. The applicant states when he was discharged he was told that a "Chapter 13" discharge was a GD. He is homeless and in need of assistance from the Department of Veterans Affairs (VA).
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).
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 4 May 1973, completed training, and was awarded the military occupational specialty 94B (Food Service Specialist).
3. He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on:
* 8 January 1974, for assault on a military policeman and using disrespectful language toward a commissioned officer
* 4 February 1974, for failure to go to his place of duty
* 13 March 1974, for failure to go to his place of duty (two occasions) and failure to obey a lawful order from noncommissioned officer
4. Except for the final approval, the available record contains no documentation of the applicant's discharge processing. On 17 April 1974, the separation authority directed the applicant's UD for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
13-5a.
5. The applicant was issued an Undesirable Discharge Certificate on 29 April 1974. He had 10 months and 26 days of creditable active service with no time lost.
6. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.
7. Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.
8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. Entitlement to VA benefits is neither within the purview of this Board nor is it normally considered a basis for granting relief.
2. The record does not contain and the applicant has not provided any evidence to show he was advised his separation was or should have been anything other than a UD.
3. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and that the type and character of the discharge is commensurate with his overall record.
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) AR20130009339
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130009339
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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