IN THE CASE OF:	

		BOARD DATE:	    10 April 2014

		DOCKET NUMBER:  AR20130015062 


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 undesirable discharge to an honorable or a general discharge.

2.  The applicant states:

* He is requesting that his discharge be upgraded so he can apply for Department of Veterans Affairs (VA) benefits due to being exposed to Agent Orange
* His discharge was due to a civil conviction and since that time, he has not committed any other crimes
* He was 25 years old at that time

3.  The applicant provides a copy of his DD Form 214 (Armed forces of the United States Report of Transfer or Discharge), dated 22 February 1973.

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.  With prior enlisted service in the Regular Army (RA) as a medical specialist, the applicant reenlisted in the RA for 6 years on 15 October 1965.

3.  On 27 August 1966, the applicant accepted nonjudicial punishment for failure to report to his unit.

4.  A newspaper article dated 24 July 1968 states that the applicant was arrested and charged with illegal possession of $7,500.00 worth of marijuana he had shipped to himself from Vietnam.  According to police, the applicant had been staying at the home of a relative.  His bond was affixed at $1,000.00 pending court appearance.  The newspaper article states that local military police were cognizant and that a Criminal Investigation Division case was opened in Philadelphia.  The record is void of any further information regarding this case.

5.  On 8 October 1969, the applicant was notified that charges were pending against him for being disrespectful toward a superior commissioned officer and for being absent without leave (AWOL) from 30 August 1969 through 26 September 1969.

6.  The applicant's record contains a DA Form 19-32 (Military Police Report) which shows that the applicant went AWOL on 7 November 1969 and he was dropped from the rolls as a deserter on 13 November 1969.  The report shows that the applicant was AWOL on 26 November 1972 when he was apprehended by civil authority for armed robbery of bank in the amount of $24,598.00.  He pled guilty and he was sentenced to 5 years in prison.

7.  The facts and circumstances surrounding the applicant's discharge are not available.  His DD Form 214 shows he was discharged on 22 February 1973, under the provisions of Army Regulation 635-206, as a result of a civil conviction. He received an Undesirable Discharge Certificate.

8.  On 15 October 1976, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided for 

the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

10.  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's contentions have been noted.  

2.  The Army does not have nor has it ever had a policy that provides for the upgrade of a discharge for VA benefits.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  Although his discharge packet is not available for review, there is no evidence of record and the applicant did not provide any evidence that suggests there was any error or injustice related to his separation processing.

3.  Based on the applicant's overall record of service, the type of discharge he received and the reasons therefore were proper.

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)                                         AR20130015062



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ABCMR Record of Proceedings (cont)                                         AR20130015062



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