IN THE CASE OF: BOARD DATE: 5 February 2015 DOCKET NUMBER: AR20140010878 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 under other than honorable conditions discharge. 2. The applicant states that in 1967 he was classified as "4F" by the military draft board for having a physical condition. In September 1972, he volunteered for the U.S. Army. The Army doctor told him that he had a heart condition and the condition would go away as he got older. However, his heart condition didn't allow him to complete his military service. He still has the heart condition and has filed for veterans' benefits, but his claim was denied. An upgrade of his discharge will allow him to appeal the decision. 3. The applicant provides copies of a letter and his echocardiogram. 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 21 September 1972. On 2 October 1972, he was assigned to Headquarters and Headquarters Company, 3rd Battalion, 3rd Brigade, Fort Ord, CA, for basic combat training. 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10, United States Code, and Subsequent to Normal Date ETS (Expiration Term of Service)): From Thru Days Reason 31 Oct 72 15 Nov 72 16 AWOL (Absent Without Leave) 20 Jan 73 7 Feb 73 18 AWOL 8 Mar 73 19 Aug 73 164 AWOL 4. A review of the applicant's military personnel record failed to reveal a DD Form 458 (Charge Sheet) or a copy of the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). 5. Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, Special Orders Number 291, dated 18 October 1973, discharged the applicant, effective 18 October 1973, with an Undesirable Discharge Certificate. 6. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 18 October 1973 under the provisions of Army Regulation 635-200, paragraph 10-1, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions characterization of service. He completed 6 months and 13 days of net active service during this period and he had 198 days of time lost. 7. On 4 December 1973, the applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge based on erroneous enlistment due to his medical condition. On 4 June 1974, the ADRB notified the applicant that it determined the reason for his discharge and the character of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. 8. On 12 August 1974, the applicant submitted an application to the ABCMR for a change of his discharge to a medical discharge based on his heart condition. a. A review of the applicant's military service records revealed he was found unfit in April 1968, fit in April 1970, and unfit in December 1970 based on a cardiology consultation on 7 December 1970, which diagnosed aortic insufficiency and possible active mitral insufficiency. His enlistment medical examination (on 19 September 1972) and separation medical examination (on 23 August 1973) were both essentially normal with no evidence of cardio-vascular disease. The consultant staff of The Surgeon General opined that the applicant should be further evaluated in order to determine his medical fitness. b. On 10 January 1975, after careful evaluation of clinical records, laboratory findings, health records, and medical examinations, the Medical Evaluation Board (MEB) found the applicant medically fit (i.e., observation, medical, for cardiac disease; no disease found). The MEB proceedings were approved on 13 January 1975. c. On 20 March 1975, the ABCMR notified the applicant that, after examining and considering his Army records and facts he presented, the Board determined that insufficient evidence was presented to indicate probable material error or injustice. Accordingly, the ABCMR denied the relief requested by the applicant. 9. On 15 February 1983, the applicant again submitted an application to the ADRB for an upgrade of his discharge based on medical reasons. The ADRB found the issues presented by the applicant lacked specificity and/or were not pertinent to his discharge. On 25 January 1984, the ADRB notified the applicant that it determined the reason for his discharge and the character of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. 10. In support of his application the applicant provides the following documents. a. A letter from Doctor K____ H____, Family Medical Center – Argyle, Jacksonville, FL, dated 16 August 2013, that shows the applicant was being treated for hypertension, hyperlipidemia, and benign prostatic hypertrophy, and that the conditions are currently well controlled. He also noted the applicant has a known systolic ejection murmur that has been evaluated by a cardiologist and by echocardiogram, and that the applicant has been referred back to cardiology for follow-up on the murmur. b. An echocardiogram pertaining to the applicant, dated 5 December 2013, that shows, in pertinent part, the following: "Interpretation: Sinus Rhythm; Old anterior infarct; Nonspecific T-abnormality; Abnormal." 11. Army Regulation 635-200, in effect act the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Chapter 3, 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. c. Chapter 3, 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. 12. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his under other than honorable conditions discharge should be upgraded because he entered active duty with a heart condition that didn't allow him to complete his military service, he still has the condition, and he desires to apply for veterans' benefits. 2. The evidence of record shows the ADRB reviewed the applicant's case on two separate occasions; in 1974, for upgrade of his discharge based on erroneous enlistment due to his medical condition and then in 1983, for upgrade of his discharge based on medical reasons. In both instances, it was determined that his discharge was proper and equitable and his requests were denied. 3. The evidence of record also shows, in 1975, the ABCMR reviewed the applicant's case to determine if he should have been medically discharged. His records were referred to an MEB and it was determined that the applicant was medically fit both at the time he entered the Army and when he was separated from the Army. The ABCMR found there was insufficient evidence to indicate probable material error or injustice and his request was denied. 4. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. Therefore, in the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate. 5. During the period of service under review, the evidence of record shows the applicant was AWOL during three different periods for a total of 198 days of time lost and he completed less than seven months of his 4-year enlistment obligation. Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge. 6. The two medical documents the applicant provides in support of his request for upgrade of the characterization of his service is insufficient as a basis for upgrading his discharge. 7. Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief. 8. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veterans' benefits is not within the purview of the ABCMR. Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency. 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) AR20140010878 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140010878 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1