IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140010707 


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.

2.  He states:

	a.  He enlisted in the Army on 7 June 1965 and was discharged on 6 June 1966 with an honorable discharge.

	b.  He reenlisted in the Army on 7 June 1966 and was discharged on 8 June 1968 with issuance of a discharge under other than honorable conditions.

	c.  His prior honorable discharge should make him eligible to receive veterans' benefits.

	d.  He was approved for benefits by the California Veterans Administration on 2 January 2008.  He was later denied benefits because his records indicated he had a dishonorable discharge.  He's submitting both of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) as proof of the type of discharges he received.

	e.  He went back to Sheridan, Arkansas, on 29 December 1967 for a period of 30 days.  He got married on 12 January 1968 and returned to his duty station on 28 January 1968.  In February 1968, he received a letter from his wife that the marriage was a mistake and she wanted a divorce.

	f.  He later talked with Captain (CPT) W____.  He showed CPT W____ the letter from his wife and the officer agreed to discharge him because he thought he could no longer perform his duties.  The officer told him that he would receive a general discharge.  On 8 June 1968, he received an undesirable discharge.  By that time, he just wanted to get out of the Army.

	g.  He was a very young and naïve boy who joined the Army to serve his country.  All he wanted was to be accepted by his fellow Soldiers.  He was unaware that people would mislead him and give him false information.

	h.  He was led to believe that Article 15s were not a big deal.  The court-martial verdict was overturned.

	i.  His award of the Expert Medical Badge showed he could be a good Soldier and he had been accepted into the Noncommissioned Officer School.

	j.  He asked to be discharged when he thought he couldn't serve the Army to the best of his ability.  There seemed to be an agreement by the commanding officer that this would be the best way.  He was under the impression that he was making a good decision.

	k.  Even if he doesn't get the undesirable discharge upgraded, he wants credit for his honorable discharge.  He has no dishonorable discharge.

3.  He provides:

* letter from the Department of Veterans Affairs (VA), Tucson, AZ, undated
* two DD Forms 214 for the periods ending 6 June 1966 and 9 June 1968
* letter orders, dated 28 December 1967, authorizing him 30 days of leave to the continental United States (CONUS)
* orders, dated 18 April 1968, awarding him the Expert Field Medical Badge
* two letters from a former fellow Soldier to his parents, dated 28 March 1965 and 20 April 1965
* letter from the VA, Los Angeles, CA, dated 2 January 2008
* Certificate of Eligibility issued on 21 August 1972

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 was born on 16 July 1947 and he enlisted in the Regular Army on 7 June 1965 at 17 years of age.  At the completion of initial entry training, he was awarded military occupational specialty 91E (dental specialist).  He was honorably discharged on 6 June 1966 for immediate reenlistment.  His DD Form 214 for this period shows he completed 1 year of active military service.

3.  The applicant reenlisted on 7 June 1966 for a period of 4 years.  On 22 July 1966, he was assigned to the 7th Evacuation Hospital in Germany as a dental hygienist.  He was later reassigned to the 8th Evacuation Hospital in Germany.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on five occasions for the following offenses:

* being absent from his place of duty on 14 August 1966
* violating Article 134, Uniform Code of Military Justice, and escorting a German female into his room in the billets building of the 7th Evacuation Hospital on 15 March 1967
* being absent from his unit from 1700 hours, 28 October 1967, to 0100 hours, 29 October 1967
* being absent from his unit from 2400 hours, 6 February 1968, to 0100 hours, 7 February 1968
* being absent from his unit on 7 March 1968 and unlawfully entering the warehouse of Einsiedlerhof Medical Depot

5.  The applicant's service record also reveals a disciplinary history that includes one conviction by a special court-martial for losing control of his weapon and allowing it to be played with by an unidentified male of approximately 12 years of age and wrongfully lying down on guard duty.  He was sentenced to forfeiture of $50.00 pay per month for 3 months and confinement at hard labor for 30 days.  The sentence was approved and duly executed, but the execution of that portion adjudging confinement at hard labor was suspended for 3 months at which time, unless the suspension was vacated, the suspended portion of the sentence would be remitted without further action.  His service record is void of evidence which shows the court-martial verdict was overturned.

6.  On 13 March 1968, the company commander notified the applicant of the proposed separation action under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6a(1), by reason of unfitness for his participation in incidents of a discreditable nature.  He was advised of his rights.

7.  On 2 April 1968, the applicant underwent a psychiatric evaluation and was diagnosed as having an immature personality manifested by immature and impulsive behavior.  The psychiatrist stated the applicant was mentally sound, of average intelligence, and possessed normal range of emotion.  Also the psychiatrist stated the applicant was unable to handle his life and affairs in a satisfactory manner due to his immaturity and impulsive behavior.  Retention in the service was not recommended and further rehabilitative efforts would not be productive.  Psychiatric clearance was granted for any administrative action.

8.  On 2 April 1968, the applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and submitted statements in his own behalf.  He acknowledged that, as a result of issuance of an undesirable discharge under conditions other than honorable, he would be ineligible for many or all benefits as a veteran under both Federal and State laws and that he would expect to encounter substantial prejudice in civilian life.

9.  In the statement submitted in his own behalf, the applicant stated he initially planned to make a career in the Army, but he later realized he wasn't meant to serve his country in this manner.  He found he could serve his country and his fellow man in a different occupation.  He couldn't seem to comply with the Army's policies because he did not believe in them.  He claimed that not all of his misconduct was his fault and there were times when there were prejudicial motives against him.  He admitted that what he did was wrong, but he believes that a certain amount of consideration should have been given on some of the incidents.  He regrets that he couldn't adjust to the Army's ways and apologizes that he caused the Army so much paperwork.

10.  The applicant's intermediate and senior intermediate commanders recommended approval with a general discharge.

11.  The separation authority approved the separation action and directed his discharge under the provisions of Army Regulation 635-212 with issuance of an Undesirable Discharge Certificate.

12.  On 9 June 1968, he was discharged under conditions other than honorable under the provisions of Army Regulation 635-212 by reason of unfitness.  He completed 2 years, 4 months, and 3 days of active military service during the period under review with a total of 3 years, 4 months, and 3 days active military service.

13.  On 9 September 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

14.  The applicant provided the following documents:

	a.  An undated letter from the Tucson VA confirms he had two discharges from the Army from 7 June 1965 to 6 June 1966 (honorable) and from 7 June 1966 to 15 May 1968 (other than honorable).  The official stated the applicant should be eligible for health care service as one his discharges indicated honorable service.

	b.  Letter Orders 12-16, dated 28 December 1967, authorized him 16 days of ordinary leave and 14 days of advanced leave (30 days) to visit CONUS effective 29 December 1967.

	c.  Special Orders Number 45, dated 18 April 1968, show he was awarded the Expert Field Medical Badge.

	d.  Two letters from a former fellow Soldier who wrote to the applicant's parents expressing how the letters from the applicant's wife had affected him emotionally and how his attitude has improved over time.

	e.  A Certificate of Eligibility from the VA issued on 21 August 1972 which shows he was eligible for loan guaranty benefits based on Title 38, U.S. Code, chapter 37.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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 evidence of record shows the applicant initially enlisted in the Regular Army on 7 June 1965 and was honorably discharged on 6 June 1966 for immediate reenlistment.

2.  The applicant's service record shows he received five Article 15s for being absent from his unit and one conviction by a special court-martial for losing control of his weapon and allowing it to be played with by an unidentified male of approximately 12 years of age and for wrongfully lying down on guard duty.  His service record does not show that his special court-martial verdict was overturned.

3.  The applicant's administrative separation for unfitness under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

5.  Although the applicant's intermediate commanders recommended his separation with a general discharge, it appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable or general discharge and characterized his service as under other than honorable conditions.

6.  Records show the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

7.  The evidence provided by the applicant confirms he is eligible for VA loan guaranty benefits and VA medical benefits based on his honorable service from 7 June 1965 to 6 June 1966.

8.  The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his discharge from undesirable to an honorable or 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 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)                                         AR20140010707



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ABCMR Record of Proceedings (cont)                                         AR20140010707



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