IN THE CASE OF:	  

		BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130014591 


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 an upgrade of his general discharge to an honorable discharge.

2.  He states he was wrongfully court-martialed.  He was given his rank and money back, but was given a general discharge under honorable conditions.  He contends that since the court-martial was bad, he should have been received an honorable discharge.  He is trying to use Department of Veterans Affairs (VA) benefits to finish his education but has been denied based upon the nature of his discharge.  He does not understand why because he was able to use some of his VA benefits in 1979 and should be allowed to finish using them to obtain a degree in computer science.

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* an Illinois Veteran Grant (IVG) Program Application
* an IVG Program Notice of Ineligibility

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 18 October 1967.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of separation, he held the rank/grade of private/E-2.  He served overseas in the Republic of Korea for 1 year and 23 days.

3.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for the following offenses:

* disobeying a lawful order from a commissioned officer
* failing to go to his appointed place of duty at the time
* absenting himself from his place of duty without authority on three occasions

4.  His disciplinary history also includes his appearing before a special court-martial (SPCM) where he was tried and convicted of violating Articles 86 and 134 of the UCMJ by: departing his unit in an absent without leave (AWOL) status on two occasions; possessing marijuana; possessing false pass documents on three occasions; and breaking restriction.  The sentence for these offenses was for the applicant to be confined at hard labor for 6 months and to forfeit $68.00 pay per month for 6 months.  However, the sentence was set aside based upon the fact that the applicant's detailed defense counsel was excused from participation in the case without the express consent of the applicant and another defense counsel was not detailed.  Instead, the appointed assistant counsel acted as defense counsel for the applicant without proper authority.  As a result, all rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and the sentence so set aside were ordered to be restored.

5.  On 31 December 1968, the applicant's unit commander notified him that action was being initiated to require him to appear before a board of officers convened under the provisions of Army Regulation 635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service for unfitness.  The applicant was informed that the basis for the recommendation were his habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  The applicant was also advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.  The applicant acknowledged receipt of this notification on the same date.

6.  On 8 January 1969, having been advised by counsel, he requested consideration of his case by a board of officers, personal appearance before the board, and representation by his appointed counsel.  He waived his right to submit statements in his own behalf.  He stated he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. 

7.  The applicant underwent a mental hygiene evaluation.  The examining psychiatrist determined that the applicant exhibited no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  As a result, he recommended the applicant be considered for elimination for the service and cleared him for administrative action as deemed appropriate by his command.

8.  On 3 March 1969, the applicant's unit commander recommended that he be required to appear before a board of officers convened under the provisions of Army Regulation 635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service for unfitness.  The commander stated the bases for the recommendation were the applicant's aforementioned repeated offenses.  The commander opined that his behavior was not due to his incapacity to become a satisfactory Soldier within the meaning of unsuitability. 

9.  On 17 April 1969, the Commanding General determined the applicant would be permitted to appear before a board of officers convened to determine whether he should be eliminated from the service for unfitness under the provisions of Army Regulation 635-212.

10.  On 24 April 1969, a board of officers held a hearing to determine whether the applicant should be discharged because of unfitness before the expiration of his term of service.  The board carefully considered the evidence before it and found that he was unfit for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses and 
habitual shirking.  His rehabilitation was not deemed possible.  The board recommended that he be discharged from the service because of unfitness with the issuance of a General Discharge Certificate.  As a result, the Commanding General directed the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness with the issuance of a General Discharge Certificate.

11.  The DD Form 214 issued to the applicant at the time confirms he was discharged accordingly on 10 June 1969.  He had completed a total of 1 year,    7 months, and 6 days of creditable active military service and he had 17 days of lost time.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge.  On 10 January 1971, the Acting Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharged.

13.  The applicant applied to the ADRB for an upgrade of his discharge under the Department of Defense Discharge Review Program (Special).  On 22 September 1977, The Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

14.  The applicant provides documents that show he applied for participation in the IVG Program on 15 July 2013.  On 22 July 2013, the applicant was sent a letter notifying him that the Illinois Student Assistance Commission had determined that he is not eligible for the IVG because his character of service was not listed as honorable. 

15.  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 6 of the regulation provided, in part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or 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.

16.  Army Regulation 635-200 sets forth the basic policy 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on five occasions and being tried by SPCM on one occasion for a variety of offenses.

2.  The evidence of record shows that following consideration by a board of officers, the applicant was discharged under the provisions of Army Regulation 635-212, because of habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable, and the applicant was made aware of this prior to his discharge.

4.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.
Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for upgrading the applicant's general to an honorable 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)                                         AR20130014591





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ABCMR Record of Proceedings (cont)                                         AR20130014591



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