MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 25 November 1998
DOCKET NUMBER: AC97-10663
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
APPLICANT REQUESTS: That his general discharge be upgraded to an honorable discharge by reason of physical disability.
APPLICANT STATES: In effect, that he desires his general discharge to be upgraded to an honorable discharge by reason of physical disability because he has been diagnosed as being HIV positive.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in Philadelphia, Pennsylvania on 23 September 1973 for a period of 2 years and was transferred to Fort Dix, New Jersey for his basic training.
The applicant experienced difficulty in basic training and was transferred to a special training company (STC) for additional training. While in the STC he went AWOL from 3 February until 27 March 1975.
On 28 March 1975 nonjudicial punishment was imposed against the applicant for his AWOL offense. His punishment consisted of a forfeiture of pay.
The applicant eventually completed his basic training and was transferred to Fort Polk, Louisiana on 12 June 1975 for his advanced individual training (AIT) as a light weapons infantryman.
On 2 July 1975 the applicants commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability. He cited as the basis for his recommendation the applicants lack of effort to meet the standards expected of a soldier, his gross lack of maturity and responsibility, his being unreliable and a liar, and the fact that he informed his commander and drill sergeant that only trouble could be expected if he were retained and that he might hurt someone if he were not discharged.
After consulting with counsel, he waived consideration by and a personal appearance before a board of officers. He also elected not to submit a statement in his own behalf.
The applicant underwent a medical examination on 2 July 1975 and was found qualified for separation.
The appropriate authority approved the recommendation for discharge on 14 July 1975 and directed that he be furnished a general discharge.
Accordingly, he was discharged under honorable conditions on 17 July 1975 under the provisions of Army Regulation 635-200, chapter 13, for unsuitability. He had served 7 months and 4 days of total active service and had 52 days of lost time due to AWOL.
Medical records obtained from the VA indicate that the applicant has a history of cocaine use and was diagnosed as HIV positive in February 1997.
The applicant applied to the Army Discharge Review Board for an upgrade of his discharge. However, because he failed to file within that Boards 15-year statute of limitations, this Board accepted his application in lieu if a DD Form 149.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. 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. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The applicants administrative discharge was accomplished in accordance with applicable regulations in effect at the time with no indication of any procedural errors that would tend to jeopardize his rights. Accordingly, the type of discharge and the reasons therefore were appropriate given the circumstances in this case.
3. While the applicant has been diagnosed with HIV, there is no evidence in the available records to suggest that he was HIV positive at the time he was separated or that his disease was incurred as a result of his service. Therefore, there is no basis to change his reason for separation.
4. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__jev____ ___rvo __ __js ____ DENY APPLICATION
Loren G. Harrell
Director
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