BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130010827 


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 an honorable discharge.

2.  The applicant states he enlisted in September 1962, served in the Republic of Vietnam (RVN) for a period of 13 months, attained the rank of specialist four/pay grade E-4, and he was honorably discharged in October 1964 after serving more than 2 years on active duty.

   a.  He reenlisted on 16 October 1964 for a period of 6 years.  During the period of his reenlistment he requested a change in his unit, but he was forced out of the Army.  He was never given a reason as to why he was discharged nor the basis for the character of service of his discharge.  He feels that this was abuse of power.

   b.  He states that his exposure to Agent Orange has contributed to health complications.  He adds that an upgrade of his discharge will enable him to obtain medical benefits.

3.  The applicant provides copies of two discharge documents that include his DD Form 256A (Honorable Discharge Certificate) and 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.  The applicant enlisted in the Regular Army (RA) on 28 September 1962 for a period of 3 years.  He served in the RVN from 20 March 1963 through 19 March 1964.

3.  A DD Form 214 shows he was honorably discharged on 15 October 1964 to reenlist in the RA.  He had completed 2 years and 18 days of net active service this period that included 1 year of foreign service.

4.  The applicant reenlisted in the RA on 16 October 1964 for a period of 6 years.

5.  A Relief of Student report shows the applicant was relieved from the Fixed Station Radio Equipment course on 5 March 1965 due to lack of interest.

6.  A DA Form 20B (Record of Court-Martial Conviction) shows the applicant was convicted by a summary court-martial, on 22 July 1965, of failing to obey a lawful order, being disorderly in uniform in public, and breaking restriction.  He was sentenced to forfeiture of $45.00 pay a month for 1 month and hard labor without confinement for 15 days.

7.  An FB Form 1638 (Statement - Article 15, Manual for Courts-Martial) shows the applicant received nonjudicial punishment (NJP) on three occasions for:

* failing to obey a lawful order on 1 March 1965
* failing to obey a lawful order on 17 May 1965
* violating a lawful general regulation, damaging government property, discharge of a weapon to the prejudice of good order and discipline on 
29 October 1965, and being absent without leave (AWOL) from 1 through 6 November 1965
8.  On 12 November 1965, the applicant's company commander requested that the applicant undergo a psychiatric examination due to pending board action under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).

9.  The applicant was evaluated at the Mental Hygiene Consultation Service, Fort Bragg, NC.  A psychiatrist examined the applicant and reviewed information in his medical records.

   a.  He found the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He also found that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in separation board proceedings.  

   b.  He diagnosed the applicant with inadequate personality manifested by inability to tolerate authority figures, impulsiveness, poor judgment, demand for immediate gratification regardless of future consequences, and poor motivation.  

   c.  The doctor recommended the applicant for administrative separation.

10.  On 23 November 1965, the applicant's company commander recommended that the applicant be required to appear before a board of officers convened under the provisions of Army Regulation 635-208 to determine whether or not he should be discharged prior to the expiration of his term of service for unfitness. 

   a.  The company commander noted the applicant was constantly involved in infractions of rules and regulations, and he had one summary court-martial and three NJPs.  He added that the applicant needed constant supervision, could not be trusted, counselling had failed, and the applicant could not or would not improve.

   b.  The commander advised the applicant of the basis for the separation action recommended.  He also advised him of his rights and the separation procedures involved.

   c.  The applicant acknowledged that he understood that if an Undesirable Discharge was issued it would be under conditions other than honorable; that as a result of such discharge he may be deprived of many or all rights as a veteran under both Federal and State laws; and that he may expect to encounter substantial prejudice in civilian life in the event of a less than honorable discharge.

11.  The intermediate commanders recommended approval of the applicant's separation.

12.  On 13 December 1965, the Commanding General, Fort Bragg, NC, approved the applicant's discharge and directed issuance of an Undesirable Discharge Certificate.

13.  The applicant's DD Form 214 shows he was discharged on 27 December 1965 under the provisions of Army Regulation 635-208 and his service was characterized as under conditions other than honorable.  He had completed 
1 year, 2 months, and 6 days of net active service this period.  Item 32 (Remarks) shows he had a total of 6 days of lost time.

14.  On 27 December 1965, the applicant acknowledged receipt of a copy of his separation proceedings.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  An individual was subject to separation under the provisions of this regulation when it was determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a Soldier discharged for unfitness was normally furnished an Undesirable Discharge Certificate.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 3, 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.  Chapter 3, paragraph 3-7b, provides that an under honorable conditions discharge 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 his undesirable discharge should be upgraded because he had a prior period of honorable active duty service that included a tour of duty in the RVN; he was forced out of the Army and not given a reason as to why he was discharged nor the basis for the character of his service; and an upgrade of his discharge will enable him to obtain medical benefits.

2.  A DD Form 214 documents the applicant's prior period of honorable active duty enlisted service in the RA from 28 September 1962 through 15 October 1964.

3.  The evidence of record shows the applicant's commander advised him of the basis for the separation action.  It also shows the applicant acknowledged receipt of a copy of his approved separation proceedings.  Thus, the evidence of record refutes the applicant's contention that he was not provided the reason for his discharge or the basis for the characterization of his service.

4.  The applicant's discharge for unfitness under the provisions of Army Regulation 635-208 based on frequent incidents of a discreditable nature with military authorities was administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Thus, considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

5.  The evidence of record shows that the applicant received NJP on three occasions and he was convicted by a summary court-martial.  Moreover, he completed less than 15 months of his 6-year active duty obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the 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, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.
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)                                         AR20130010827



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ABCMR Record of Proceedings (cont)                                         AR20130010827



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