BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130016464 


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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he applied for benefits through the Department of Veterans Affairs but appears to have been denied those benefits
* he has certain illnesses that require immediate medical attention and he neither has insurance nor can he afford medical treatment
* when he was in Vietnam, he was involved in drugs and he was discharged for his activity in that regard
* he should not be deprived of benefits for something that he did some 40 years ago 
* he has been homeless for 10 years now and he has not been able to work since 2008
* the characterization of service has been haunting him and preventing him from getting a decent job or life

3.  The applicant does not provide any evidence. 

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's records show he enlisted in the Regular Army on 25 September 1969 and he held military occupational specialty 76V (Equipment Storage Specialist).  

3.  He served in Vietnam from 24 January 1971 to 22 December 1971.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), National Defense Service Medal, two overseas service bars, Vietnam Service Medal with two bronze service stars, and Republic of Vietnam Campaign Medal with 1960 Device. 

4.  His service records contain evidence he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 6 January 1970, being absent from his appointed place of duty
* 13 August 1971, failing to go to his appointed place of duty
* 16 August 1971, being absent from duty and wrongfully communicating a threat

5.  The applicant's complete separation packet is not available for review with this case.  However, his service record contains evidence that shows: 

	a.  On 1 November 1971, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness citing the applicant's frequent incidents of chronic heroin addiction.   

	b.  On 3 November 1971, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him and as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 

	c.  On 3 November 1971, subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unfitness with an under other than honorable conditions discharge.  The applicant's intermediate and senior commanders recommended approval of the discharge with the issuance of an undesirable discharge.

	d.  On 10 December 1971, consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate.

6.  On 28 February 1972, Headquarters, U.S. Army Training Center, Engineers, Fort Leonard Wood, MO, published Special Orders Number 59, ordering his discharge effective 29 February 1972 with the issuance of a DD Form 258A (Under Other Than Honorable Conditions Discharge Certificate) as a result of elimination action.  

7.  He was accordingly discharged on 29 February 1972.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness with a separation program number (SPN) of 28B (unfitness).  His character of service was under other than honorable conditions.  He completed 2 years, 3 months, and 6 days of total active service and he had 60 days of lost time. 

8.  On 6 November 1973 and on 8 July 1985, the Army Discharge Review Board (ADRB) reviewed his discharge and in each case, determined he was properly and equitably discharged.  The ADRB twice voted unanimously to deny his petition for an upgrade of his discharge.

9.  Army Regulation 635-212, in effect at the time, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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 states 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 record is void of the complete facts and circumstances that led to his discharge.  However, his record contains sufficient evidence, including a properly-constituted DD Form 214, that shows he was discharged on 29 February 1972 under the provisions of Army Regulation 635-212 by reason of unfitness.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Based on his record of indiscipline, his service does not merit an upgrade of his discharge to either honorable or general.







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)                                         AR20130016464



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ABCMR Record of Proceedings (cont)                                         AR20130016464



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