BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150000742 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he desires an upgrade of his discharge because he is being denied Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army on 20 July 1972 for a period of 3 years and training as a motor transport operator.  He completed his one-station unit training at Fort Polk, Louisiana and was transferred to Fort Eustis, Virginia for his first assignment.  

3.  On 8 January 1975, the applicant’s company commander recommended a bar to reenlistment based on nonjudicial punishment (NJP) being imposed against him on four occasions for offenses of going absent without leave (AWOL), failure to obey a lawful order and failure to go to his place of duty and failure to pay just debts.

4.  On 17 January 1975 the appropriate approval authority approved the bar to reenlistment and determined the applicant was not recommended for further service.  In addition, he was advised that if his future conduct and performance would warrant elimination from the Service, necessary action would be taken to initiate separation proceedings under the provisions of Army Regulation 635-200 (Enlisted Personnel – Administrative Separations), chapter 13. 

5.  The complete facts and circumstance surrounding his administrative discharge are not present in his available records.  However, his records do show that NJP was imposed against him on four separate occasions, that his commander notified him that he was to appear before a board of officers to determine if he should be separated from the service under the provisions of Army Regulation 635-200, chapter 13 for unfitness due to his frequent involvement in incidents of a discreditable nature with military and civilian authorities.   

6.  His records contain a duly authenticated DD Form 214 which shows that he was discharged under other than honorable conditions on 17 March 1975 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness based on his frequent involvement in incidents of a discreditable nature with military and civilian authorities.  He had served 2 years, 7 months and 24 days of active service with 4 days of lost time. 

7.  On 7 July 1975, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 12 October 1976, the ADRB found the applicant had been properly discharged and voted to upgrade his discharge characterization of service to a general discharge (under honorable conditions).  Accordingly, he was issued a new DD Form 214 showing he was discharged under honorable conditions.  A copy of his reissued DD Form 214 is filed in his record.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 in effect at the time contained the policy and outlined the procedures for separating individuals 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 prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

9.  Army Regulation 635-200 further 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's complete separation processing packet is not available for the Board's review.  It is presumed that the Army's administrative processing of the applicant for discharge based on acts of a discreditable nature with authorities was correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

3.  A review of the applicant's record of service, which included non-judicial punishment, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Notwithstanding the actions of the ADRB, his service simply did not rise to the level of a fully honorable discharge.  Additionally, the Board does not upgrade discharges solely for the purpose of qualifying individuals for benefits that they otherwise would not be entitled to receive.

4.  In view of the foregoing, there is insufficient evidence to support upgrading his discharge to fully honorable.   

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)                                         AR20150000742





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ABCMR Record of Proceedings (cont)                                         AR20150000742



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