RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070013813 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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, characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his UOTHC discharge should be upgraded to an honorable discharge. 

3.  The applicant provides a copy of a statement from a former service member, a copy of a medical stated from Internal Medicine Service, dated 6 July 1982, a copy of his DA Form 3349 (Physical Profile Board Proceedings), a copy of Standard Form 539 (Abbreviated Medical Record), and a copy of a DD Form 214 (Report of Separation from Active Duty) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), in support of his request.

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 record shows he enlisted in the Regular Army on 24 November 1976.  He was trained as a Cavalry Scout, in military occupational specialty (MOS), 19D.  He was promoted to SP4/E-4 effective 1 December 1978.  He served until he was honorably discharged on 27 June 1979 for immediate reenlistment.   He reenlisted on 28 June 1979.

3.  The applicant provided a copy of an Abbreviated Medical Record, dated 9 June 1982, which indicates he was too drunk to assess and was admitted to the hospital for observation for a head injury.  It also indicates that he was intoxicated, had soft tissue injury to his right face, closed head trauma, with loss of consciousness.

4.  The applicant provided a copy of a statement from a physician, of the Internal Medicine Service, dated 6 July 1982.  The physician indicated that it was his understanding that the applicant was pending a Chapter 13 discharge which required a chapter physical.  He also indicated that the applicant had an unusual sleep disorder.  Before completing his chapter physical, he recommended that the applicant be seen by a specifically named physician of the Landstuhl Neurology.

5.  The applicant provided a copy of his Physical Profile Board Proceedings, dated 23 June 1982, which shows he was diagnosed as having severe anemia and a sleep disorder.  He was issued a temporary profile of 311111. 

6.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his DD Form 214 which shows that on 13 December 1982, he was discharged, in pay grade of E-1, under the provisions 
of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was furnished an UOTHC discharge.  On the day of his discharge, he had a total of 6 years and 20 days of creditable service.

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

8.  The applicant's medical records are unavailable for review.

9.  The applicant provided a copy of a statement from a previous supervisor that served with him on active duty.  He stated that the applicant was assigned to him as his truck driver in November 1980 from the scout platoon.  While in this position, he performed well on days he could be awakened in the morning.  He was relieved of this job in January 1981 under the recommendation of his physician who felt with his condition it was too dangerous for him to drive.  The applicant was then made his clerk in the supply room.  

10.  The supervisor also stated that he worked quite closely together with the applicant to try to overcome this problem to include some rather drastic measures such as dumping him on the floor and buckets of cold water; however, nothing seemed to help.  When he did not wake up there was no way of getting to him.  It was like he was in a coma.  On mornings when he did not get up right away, he usually tried about every half hour and around 1000 or 1100 hours he finally responded.  He felt bad about the problem to the point of asking him to go with him to the hospital and speaking with his doctor to see if they could work something out.  The applicant did not go on sick call for his problem.  In fact, when he was sick, he ordered him to go get taken care of the same way as when he had the flu.  As his supervisor, he felt the applicant should be discharged for his own good as well as for the good of the Army.  He concluded that anyone who is in the Army, especially in a combat arms unit, and could not respond when needed, alert, guard, etc., had no place in the Army.

11.  Army Regulation 635-200 sets forth the basic authority for 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 at any time, after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 



3.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service and Government regularity in the discharge process is presumed.

4.  The applicant's medical records are unavailable for review.  

5.  The evidence provided by the applicant regarding his sleep disorder was considered; however, it does not support an upgrade of his UOTHC discharge to an honorable discharge. 

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QS____  __RML__  __WDP_  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.




_____William D. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20070013813
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19821213
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.