IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140005889 


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, in effect, that his general, under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was court-martialed for having two sticks of marijuana and sent to the stockade for 30 days.  He was discharged after serving 9 months in the Republic of Vietnam (RVN) in enemy territory.  His discharge was upgraded to under honorable conditions, thereby allowing him to receive Department of Veterans Affairs (VA) medical benefits but he has never been given a military pension.  He is now diagnosed with having diabetes mellitus II, which is related to his Agent Orange exposure in the RVN.  He has been given all of his medical benefits but has yet to receive any pension benefits.

3.  The applicant provides copies of:

* DD Form 214 (Report of Separation from Active Duty)
* Letter from the Agent Orange Registry Physician, dated 14 May 2014
* A VA Form 21-4138 (Statement in Support of Claim) dated 3 June 2014

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 19 November 1968, the applicant enlisted in the Regular Army.  He was assigned to Fort Leonard Wood, MO, for basic combat training

3.  On 13 January 1969, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 1800 hours, 12 January to about 1300 hours, 13 January 1969.

4.  On 10 February 1969, he was enrolled in advanced individual training at Fort Sill, OK.  He completed his training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).

5.  On or about 5 April 1969, he departed Fort Sill, OK for duty in the RVN.

	a.  On 24 May 1969, he was advanced to the rank of private first class, pay grade E-3.

	b.  On or about 5 June 1969, he was assigned as an ammunition handler with Service Battery, 3rd Battalion, 16th Artillery Regiment.

	c.  He accepted the following NJPs:

* 29 June 1969, for being in an "off-limits" area on 21 June and for not properly observing his area of responsibility while on guard duty
* 15 July 1969, for failing to go to his appointed place of duty at the prescribed time
* 2 September 1969, for being AWOL from 26 to 28 August 1969

	d.  On 5 December 1969, a special court-martial convicted him of wrongfully possessing marijuana and traveling on Highway #1 without authorization in an unauthorized vehicle.

6.  On 21 January 1970, his commander recommended that he be required to appear before a board of officers to determine whether he should be separated prior to the expiration of his term of service.  The basis for this action was his refusal to conform to minimum military standards of conduct and efficiency as manifested by his repeated commission of military and petty offenses.
7.  On 27 January 1970, he was notified by his commander of his commander's intention to institute board proceedings against him for discharge from the Army for unfitness in accordance with Army Regulation 635-212.

8.  On or about 10 February 1970, he consulted with counsel and waived consideration of his case by a board of officers; waived representation by counsel; and elected not to submit a statement in his own behalf.

9.  Subsequently, the appropriate authority approved the recommendation of his chain of command for discharge and directed that he be discharged due to unfitness and issued a DD Form 258A (Undesirable Discharge Certificate).

10.  On 23 February 1970, he departed the RVN.

11.  On 26 February 1970, he was discharged under conditions other than honorable after completing 1 year, 3 months, and 1 day of creditable active duty service.  His DD Form 214 shows he was discharged in accordance with Army Regulation 635-212, with a separation processing number (SPN) 28B, for unfitness.

12.  On 6 July 1977, the Army Discharge Review Board (ADRB) determined he met the criteria for review under the Special Discharge Review Program (SDRP).  Accordingly, the it found that his record of service was not sufficiently meritorious to warrant an honorable characterization of service.  However, it recognized that personal problems connected with drug or alcohol abuse may have contributed to the acts which led to his other than honorable characterization of service.  In a spirit of compassion, the ADRB upgraded his characterization of service to general, under honorable conditions.

13.  On 13 April 1978, the ADRB considered the applicant's request to affirm the SDRB upgrade of his characterization of service.  Based on his frequent incidents of misconduct resulting in NJP and court-martial, the ADRB unanimously voted to not affirm the earlier decision.

14.  On 7 May 1986, this Board considered his request to affirm his general, under honorable conditions discharge.  After review of his military records and consideration of his arguments, the Board concurred with the decision of the ADRB to not affirm his general, under honorable conditions characterization of service.  The Board further noted that there was a lack of substantive mitigation to support an upgrade.

15.  On 14 January 2009, this Board administratively closed his request for reconsideration to upgrade his characterization of service to general, under honorable conditions.  

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations-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 (emphasis added), 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 contends, in effect, that his general, under honorable conditions discharge should be upgraded to honorable.

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.  The available evidence of record shows his discharge has been considered by the ADRB and this Board.  The ADRB granted him an upgrade under the SDRP based on compassion for his personal problems.  The ADRB and this Board did not find sufficient mitigation upon which to affirm the SDRP upgrade.

5.  He has not provided convincing argument or sufficient documentary evidence showing that his discharge should now be upgraded to honorable.

6.  His statement about not receiving any pension benefits is unclear in that he has not provided any documentation or explanation as to exactly what pension (VA or military) he is referring to.

7.  In view of the above, 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)                                         AR20140005889





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ABCMR Record of Proceedings (cont)                                         AR20140005889



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