RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070007458 


	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. Loretta D. Gulley

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez

Member

Mr. Chester A. Damian

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, to upgrade his discharge.

2.  The applicant states, in effect, that when he was discharged from the military, he was diagnosed with being bipolar and with depression.  The applicant also states, in effect, that he suffered from a service connected foot injury. 

3.  The applicant did not provide any additional documentary evidence in support of this application.

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's DD Form 214 shows that he enlisted in the Regular Army on
2 July 1976.  He was awarded military occupational specialty (MOS) 94B (Cook). The highest grade held was Private (E-2). 

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.

4.  The record reveals a disciplinary history that includes his acceptance of six nonjudicial punishments (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) four times, failure to go to his appointed place of duty, and for having marijuana in his possession.  His punishments included a forfeiture of pay, extra duty, restriction to the company area, and reduction to pay grade E-1. 

5.  The applicant’s military medical record contains a Standard Form 519a, dated 12 May 1977, (Radiographic Report) in which the applicant states that a pot fell on his right foot and that his foot was discolored and tender.
6.  The applicant’s military medical record contains a Standard Form 88 (Report of Medical Examination), dated 22 September 1977 that shows the applicant underwent a separation medical examination and no illnesses or injuries are noted.

7.  On 4 October 1977 a Mental Status Evaluation and a physical examination cleared the applicant for separation.

8.  The applicant’s military record contains several Standard Forms 600, (Chronological Records of Medical Care); the last one dated 2 December 1977, shows the applicant continuously sought treatment for foot problems.    

9.  On 11 November 1977, the applicant’s unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation
635-200, paragraph 13-5, for unfitness based on frequent incidents of a discreditable nature.  The unit commander based this action on the applicant’s disciplinary history, and his performance and conduct related infractions.

10.  On 13 December 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated action and the rights available to him.  The applicant waived his right and he did not submit statement on his own behalf.  He acknowledged that he understood that he would have less than 
6 years of total active and/or reserve military service at the time of separation; therefore, he was not entitled to have his case heard by a board of officers.  He also understood that he may expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.  

11.  On 22 December 1977, the separation authority approved the separation action, waived rehabilitation and directed that the applicant be separated with an Under Other Than Honorable Discharge Certificate.  

12.  The DD Form 214, the applicant was issued confirms he completed a total of 1 year, 5 months, and 1 day of creditable active military service and that he accrued 7 days of time lost due to being AWOL.

13.  On 31 July 1984, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.





14.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory 
performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

15.  Army Regulation 635-200, paragraph 3-7, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in merit. 

2.  The available evidence shows the applicant received six nonjudical punishments.

3.  There is no evidence that shows the applicant’s foot injury required him to appear before a Medical Evaluation Board.  Therefore, he is not entitled to receive a medical discharge.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BJE___  __JAM __  ___CAD_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




         _Barbara J. Ellis   __
          CHAIRPERSON






INDEX

CASE ID
AR20070007458
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/08
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.