IN THE CASE OF:	  

		BOARD DATE:  11 March 2014

		DOCKET NUMBER:  AR20130009760 


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 be upgraded to honorable.

2.  The applicant states the Department of Veterans Affairs (VA) changed his discharge to honorable but the Army has not changed it.  He contends that if the characterization of his service is changed, he would be entitled to a property tax rebate.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a VA Administrative Review, and an email from the Wisconsin VA Eligibility Specialist.

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 October 1968.  He was awarded military occupational specialty 11H (Indirect Fire Crewman) upon completion of initial entry training.

3.  He accepted nonjudicial (NJP) punishment on the following dates:

	a.  28 August 1969 for dereliction of his duties;

	b.  3 October 1969 for being absent from his unit without authority;

	c.  7 August 1970 for being absent from his unit without authority;

	d.   2 September 1970 for being incapacitated for the performance of his duties as a result of previous indulgence in intoxicating liquor or drugs;

	e.  3 September 1970 for disobeying a lawful order from his superior commissioned officer;

	f.  23 September 1970 for dereliction of his duties;

	g.  19 November 1970 for being absent from his place of duty without authority on two occasions and for disobeying lawful orders from his superior commissioned and noncommissioned officers; and

	h.  3 December 1970 for wrongfully discharging a firearm and wrongfully having in his possession habit-forming drugs.

4.  On 22 December 1970, his immediate commander recommended his discharge from the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness, with an Undesirable Discharge Certificate.  His commander stated the reason for the proposed separation action was the applicant's repeated commission of discreditable incidents with military authorities.  The commander also stated the applicant's performance was characterized by intentional shirking of his duties and by behavior rendering him subject to punitive action repeatedly. The commander further stated the applicant had been counseled on four occasions by his chain of command.

5.  The applicant consulted with legal counsel.  He was advised of the basis for the contemplated separation action and his right to present his case before a board of officers, to submit a statement in his own behalf, and to be represented by counsel.  He elected to waive his rights.  He also indicated that he understood he might expect to encounter substantial prejudice in civilian life by reason of a general discharge under honorable conditions.  He also acknowledged that 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 as a result of a discharge under conditions other than honorable.

6.  He submitted a statement in his own behalf indicating that he was not denying having done the things charged against him; but, rather that he no longer was using drugs.

7.  On 15 January 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate.  On 23 January 1971, he was discharged accordingly.

8.  He provides the first page of a letter from the VA, subject: Request for Administrative Review, dated 12 July 1972, indicating that the VA reviewed the characterization of his military service.  He also provides an email from the Wisconsin VA Eligibility Specialist indicating that he would need proof of an upgrade of his character of service to qualify for a property tax credit.

9.  The Army Discharge Review Board twice denied his request for a discharge upgrade on 24 May 1972 and on 3 June 1982.

10.  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 of the regulation 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.

11.  Army Regulation 635-200 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 requests an upgrade of his undesirable discharge in order to qualify for a State property tax rebate.  However, the ABCMR does not upgrade an individual's character of service for the sole purpose of enabling that individual to obtain State and/or Federal veteran's benefits.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel, he was advised of the basis for the separation action, and he was provided the opportunity to present his case before a board of officers, which he elected not to do.  Therefore, all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant has not provided any evidence showing that the VA changed the characterization of his discharge from the Army.  Furthermore, there is no law or regulatory provision that would give the VA authority to take such action.  However, the VA does have the authority to make determinations regarding what benefits a veteran may receive based on his military service.

4.  His record of indiscipline includes NJP on eight occasions for several acts of misconduct.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.
	
5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.


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)                                         AR20130009760



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ABCMR Record of Proceedings (cont)                                         AR20130009760



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