BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130022253 


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 (UD) be upgraded.

2.  The applicant states he is a 62 year old Vietnam veteran who was unjustly given a UD.  After more than 30 years, he finds himself in dire need of assistance from the Department of Veterans Affairs (VA).  He was inducted into the Army of the United States and had an exemplary service record until going to the Federal Republic of Germany (FRG).  While serving in the FRG, he worked as a cook.  When he refused to work a shift for a white Soldier he was accused of stealing a transistor radio from that Soldier.  He was offered the choice of a court-martial or a UD.  He was told that the UD would be automatically upgraded to a general discharge after a year.  So, with being fed-up with the racism, he accepted the UD.  He never checked to find out if his UD had ever been upgraded because he did not need help until now.

3.  The applicant provides no additional documentary 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.  On 2 February 1971, the applicant was inducted into the U.S. Army.  He completed his initial training as a cook.

3.  On or about 2 June 1971, the applicant departed Fort Jackson, SC for duty in the FRG.

   a.  On 22 June 1971, he was assigned to the 4th Battalion, 64th Artillery Regiment for duty as a cook.

b.  On 2 August 1971, he was advanced to private first class, pay grade E-3.

4.  On 4 April 1972, charges were preferred under the Uniform Code of Military Justice for violation of:

	a.  Article 92, specification 1: for operating a motor vehicle without possession of a valid operator’s permit;

	b.  Article 92, Specification 2: for failing to have his boots bloused;

	c.  Article 121, Specification 1: for stealing a tape player valued at about $96.00, the property of another Soldier; and

	d.  Article 121, Specification 2: for wrongfully appropriating a 2 1/2 ton vehicle valued at about $11,000, the property of the U.S. Army.

5.  On or about 7 April 1972, the applicant consulted with legal counsel and hewas advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

6.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA; and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He did not elect to make a statement in his own behalf.
7.  On 4 May 1972, the separation authority, a major general, approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 6 June 1972, the applicant was discharged accordingly.  He had completed 1 year, 4 months, and 5 days of creditable active duty service.

8.  On 16 September 1985, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 92 for failure to obey is a punitive discharge and 2 years confinement.  The same maximum punishment may be imposed for wrongful appropriation of any motor vehicle.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 contends his UD discharge should be upgraded because it was unjust and he is now in need of VA assistance.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Other than his statement, the applicant has not provided any documentary evidence showing he did not misappropriate an Army vehicle or steal another Soldier’s tape player.  Furthermore, he has not provided any documentary evidence showing he was discriminated against while in the military.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  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.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical 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 veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

6.  There is no evidence of error or injustice in the applicant's case.  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)                                         AR20130022253





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ABCMR Record of Proceedings (cont)                                         AR20130022253



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