IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014  	  

		DOCKET NUMBER:  AR20140002937 


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 honorable.

2.  The applicant states he wants to be eligible to receive veteran benefits.  He contends he was young when he received his discharge and does not want it to haunt him the rest of his life.

3.  The applicant provides no additional documentation.

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 25 July 1972, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 12C (Bridge Specialist).
3.  The applicant was advanced to specialist four, pay grade E-4 on 1 May 1974.

4.  On 11 July 1974, the applicant was honorably discharged for the purpose of immediate reenlistment.

5.  The applicant accepted the following nonjudicial punishments (NJP):

	a.  8 July 1974: for failing  to pay a just debt;

	b.  8 May 1975: for failing  to go at the time prescribed to his appointed place of duty;

	c.  16 July 1975: for stealing two boxes of ice cream, two boxes of fish sticks, and two boxes of fish filets from the U.S. government;

	d.  22 January 1976: for violating a lawful regulation by having beer in his barracks room;

	e.  1 April 1976: for possession of marijuana; and

	f.  12 July 1976: for writing a check and presenting it for payment without having sufficient funds in the account.

6.  On or about 13 August 1976, the commander notified the applicant of his intention to separate him from the service for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for misconduct.

7.  The applicant consulted with counsel and elected to waive counsel and to make a statement in his own behalf.  However, any statement that he may have made is not available for review.

8.  On 31 August 1976, the appropriate authority approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on 
13 September 1976.  He had completed 4 years, 6 months, and 19 days of total creditable active duty service.

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

11.  Army Regulation 635-200 states:

	a.  Chapter 13 applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a provided for the separation of individuals for unfitness, which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted an Undesirable Discharge Certificate was normally issued.

	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 that his undesirable discharge should be upgraded to honorable because he wants to be eligible for veteran's benefits.

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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.

6.  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)                                         AR20140002937





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ABCMR Record of Proceedings (cont)                                         AR20140002937



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