IN THE CASE OF:	

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003263 


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 service characterization from under conditions other than honorable to honorable.

2.  The applicant states be believes the decision to characterize his service as under conditions other than honorable was unjustified.  He wants to be buried in a Department of Veteran Affairs (VA) cemetery and he needs medical care now.

	a.  He spent 8 months in Vietnam and received a National Defense Service Medal and a Sharpshooter Marksmanship Qualification Badge.  After Vietnam, he was assigned to Germany.  While he was in Germany, Sergeant (SGT) MD told him to clean his rifle.  He informed SGT MD that his rifle was already clean, but he would clean his rifle again if that was what SGT MD wanted.  He cleaned his rifle again and was told he was being punished and was now required to clean the officers, which he did.

	b.  During basic combat training he was reported absent without leave (AWOL); however, he was not AWOL.  He had been hospitalized at Fort Lewis, WA with meningitis and was seriously ill.   

3.  The applicant provides

* a self-authored statement
* a letter of support/character reference from his spouse
* a letter from the Ladies Auxiliary Veterans of Foreign Wars (VFW)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* VA Form 10-7131 (Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action)

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 13 August 1971 and held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  His DA Form 20 (Enlisted Qualification Record) does not indicate any periods of AWOL.

4.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record does contain four 
DA Forms 2627-1 (Record of Proceedings Under Article 15 the Uniform Code of Military Justice (UCM)) that show he accepted nonjudicial punishment (NJP):

	a.  on 7 December 1971, for committing assault upon another Soldier by striking at him with a dangerous weapon (a rifle) likely to produce grievous bodily harm. 

	b.  on 24 August 1972, for willfully disobeying the lawful order of a commission officer to stay in the orderly room and for violating a lawful general regulation by having a switch blade knife in his possession.  

	c.  on 28 September 1972 for being drunk and disorderly in quarters.  

	d.  on 12 January 1973, for disobeying a lawful order from a noncommissioned officer (NCO) to clean his M-16 rifle and being derelict in the performance of his duties in that he negligently failed to be prepared for in inspection of his room.  

5.  He was discharged from the Army on 14 March 1973.  His record contains a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, and he received an under other than honorable conditions discharge.  

6.  His record is void of evidence that shows he served in the Republic of Vietnam.

7.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  The applicant provides:

   a.  A letter of support/character reference his spouse wrote on his behalf, wherein she stated he has held a job, helped raise their children, and volunteers to assist her with VFW functions.  He is a charter member of an American Legion Post and had numerous hours of volunteering for the many functions conducted at the American Legion.  Furthermore, he has been a definite asset to his family, his friends, his community, and to the veterans he has helped.

   b.  A letter of support/character reference written by Ms. SS, the past President of the Ladies Auxiliary VFW, who stated, in effect, that she has known him for 25 years.  He has assisted with many of the VFW functions over the years to help improve the lives of veterans the VFW supports.  

9.  Army Regulation 635-200 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.  

	c.  Chapter 10 provides that an individual who has committed an offense or offenses, the punishment for which, under the UCMJ and the Manual for Courts-Martial, United States, including a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. 

	d.  Chapter 10 of this regulation further states 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 the 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.  A discharge under other than honorable conditions would normally be given to an individual who was discharged for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his character of service should be upgraded to honorable on the basis that his characterization of service was unjust, and to make him eligible for certain VA benefits.  

2.  He further contends his unit erroneously reported him as AWOL.  There is no record of the AWOL he mentioned; however, the evidence of record does show that he accepted NJP on 4 separate occasions.   

3.  His record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged for the good of the service on 14 March 1973, under the provisions of Army Regulation 635-200, chapter 10, and he received an under other than honorable conditions discharge.

4.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army for the good of the service.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment.  Absent evidence to the contrary, regularity must be presumed in this case.

5.  His record contains a long history of NJP for assault, disobeying the lawful orders of commissioned officers and NCOs, having a switch blade knife in his possession, being drunk and disorderly, and dereliction of duty.  This misconduct rendered his service unsatisfactory.  Misconduct of this nature does not rise to the level of service required for a general or an honorable characterization of service.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20150003263



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ABCMR Record of Proceedings (cont)                                         AR20150003263



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