RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 August 2007 
	DOCKET NUMBER:  AR20070003937 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Ms. Judy L. Blanchard

Analyst

The following members, a quorum, were present:


Mr. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be upgraded. 

2.  The applicant states, in effect, that he was pending a medical discharge when he was forced to take the chapter 10 discharge.  He further states that he enlisted in the Army when he was 17 years old.  He enjoyed being in the service for 14 years (sic) between the Regular Army and the Army National Guard.  He served with pride and he was proud to be an American.  In 1980, he was involved in an accident and as a result of the accident he received multiple fractures to his arm, shoulder, and the scope on his head.  The injuries were so severe that he was unconscious for days.  He was told that he would be given a medical discharge but his company commander decided to mess things up.  He was given no choice but to choose an unwanted discharge.  He finally states, that he has several honorable discharges.  He has never requested an upgrade because he decided to finish raising his children and family. 

3.  The applicant provides a self-authored letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 April 1983, the date he was discharged from active duty.  The application submitted in this case is dated 7 March 2007.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 19 April 1979, the applicant enlisted in the Regular Army for a period of 
3 years.  He had 1 year, 11 months, and 26 days of prior active service and
4 years, 1 month, and 11 days of prior inactive service.  His military occupational specialty (MOS) was 94B (Food Service Specialist).  The highest grade he attained was pay grade E-4. 

4.  On 17 July 1980, the applicant accepted nonjudicial punishment (NJP) for operating a vehicle while intoxicated.  His imposed punishment was a reduction to pay grade E-3, a forfeiture of $169.00 pay, and 14 days extra duty.    

5.  On 4 December 1980, the applicant accepted NJP for wrongfully engaging in a fight and for operating a scooter in a reckless manner.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $100.00 pay per month for 2 months (suspended for 6 months), and 21 days extra duty.    

6.  On 15 January 1982, the applicant’s record indicates that he was reclassified into another MOS because of a medical determination.  There is no other evidence of a medical injury listed in his military records. 

7.  On 23 February 1982, the applicant accepted NJP for dereliction in the performance of his duties by failing to submit to a urine test after being directed to do so.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $150.00 pay, 7 days restriction, and 7 days extra duty.  

8.  On 17 December 1982, the applicant accepted NJP for being absent without leave (AWOL) from 21 to 23 November 1982.  His imposed punishment was, forfeiture of $100.00 pay, and 7 days extra duty.  

9.  On 16 March 1983, court-martial charges were preferred against the applicant for being AWOL from 18 January to 23 February 1983 and from 10 to14 March 1983.  

10.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain a separation document (DD Form 214) that identifies the authority and reason for the applicant’s discharge.  The applicant authenticated this document with his signature indicating he was being discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service, and characterized as under other than honorable conditions.

11.  On 18 April 1983, the applicant was discharged.  The separation document he was issued confirms he completed 3 years, 10 months, and 16 days of net active service this period for a total active service period of 5 years, 11 months, and 13 days.  

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.   

14.  Chapter 3 of the same regulation provides guidance on presumptions of fitness.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

15.  Chapter 4 of the disability regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

16.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

18.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge and the applicant authenticated this document with his signature.

2.  The applicant contends that he was pending a medical discharge from the service.  However, there is no evidence which indicates that he suffered from a medically disqualifying condition that would have supported being processed through the Army PDES at the time of his separation from active duty.  There is also no documentation in his medical record that to show he was medically unfit to perform his military duties at the time of his separation from active duty.

3.  Further, the evidence of record revealed that the applicant had an extensive disciplinary history of military infractions which ultimately led to his discharge.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, given the circumstances in this case, there is insufficient evidence to grant his request.  

4.  In the absence of any evidence of record or independent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 

5.  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 this requirement.
6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 April 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
17 April 1986.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MJF__  ___LWR_  ___DWS_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




  ____Michael J. Flynn_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/14
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.