BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150012926 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ _x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150012926 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. BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150012926 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 a general under honorable conditions. 2. The applicant states, in effect: a. he served his country and because of one night of drinking, he took a radio worth less than $50.00; b. he was given a sentence that will not allow him to use the Department of Veterans Affairs (VA) for his illness resulting from exposure to Agent Orange; and c. consideration was not given to the fact that he received the National Defense Service Medal. 3. The applicant provides: * VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) (three), dated 2 July 2015 * VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)), 2 July 2015 * VA Form 21-4138 (Statement in Support of Claim), dated 2 July 2015 * VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), dated 26 June 2015 * University General Hospital Discharge Instruction Summary, dated 10 December 2014 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 3 December 1968 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 for 3 years on 13 October 1966. He completed training as a supply clerk. 3. On 13 October and 24 November 1967 the applicant accepted nonjudicial punishment (NJP) under the provision of Article 15 of the Uniform Code of Military Justice for being absent from his place of duty and for failure to obey a lawful order. He accepted NJP on 18 April and 13 July 1968, for stealing two speakers, each of a value of about $19.95; and for failure to obey a lawful order and for failure to go to his appointed place of duty. 4. On 9 August 1968, the applicant was convicted by a special court-martial of sleeping on guard post. His sentence was adjudged and then approved on 19 August 1968. 5. On or about 5 September 1968, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. His commander cited habits and traits of character manifested by repeated commission of habitual shirking of duty as the basis for his recommendation which included his conviction by special court-martial. He acknowledged receipt of the notification on 28 November 1968. 6. On 28 November 1968, the appropriate authority approved the recommendation for discharge and recommended the issuance of an Undesirable Discharge Certificate. 7. On 3 December 1968, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 and assigned separation program number 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities). His DD Form 214 shows he completed 1 year, 11 months, and 7 days of total active service and he was authorized the National Defense Service Medal. He was issued an Undesirable Discharge Certificate. 8. On 24 March 1975, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge to honorable. 9. On 1 August 1984, this Board denied his request for an upgrade of his discharge to honorable based on that fact he did not file his application in a timely manner. 10. The applicant provides several VA Forms showing his desire to receive VA benefits for numerous physical ailments (diabetes, asthma, emphysema, chronic obstruction pulmonary disease, among others) to include ailments from exposure to Agent Orange. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. It stated an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. 3. Army Regulation 600-8-22 (Military Awards) states the National Defense Service Medal is awarded for honorable active service between 1 January 1961 and 14 August 1974, both dates inclusive. DISCUSSION: 1. The applicant's contentions are noted. However, his records show that he accepted NJP on four separate occasions and he was convicted by a special court-martial. 2. Notwithstanding the fact that he received the National Defense Service Medal, he was discharged in accordance with the applicable regulation and the type of discharge he received properly reflects his overall record of service. The records contain no evidence of procedural or other errors that would have jeopardized his rights. 3. The fact that he appears to be ineligible to receive VA benefits is an insufficient basis for upgrading his undesirable discharge. The applicant's service did not meet the standards of acceptable conduct and performance of duty required for characterization of his service as honorable or general under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012926 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012926 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2