IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080005486 


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, in effect, that his general discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he is bipolar with bleeding ulcers and he received over 50 pints of blood, therefore, his ulcers are worse.  He believes he could have continued being a good Soldier, if he had not got shot.  He was told he would get an honorable discharge do he decided to get out because he could not do what he could before he was shot.  

3.  The applicant provides no additional documentation 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 13 March 1968.  He was trained as a Light Weapons Infantryman, in military occupational specialty (MOS), 11B.  He was promoted to pay grade E-3 on 26 July 1968.  

3.  On 4 December 1968, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 1 July 1968 to 14 November 1968.  His sentence consisted of confinement at hard labor for 3 months and a forfeiture of pay for 3 months.

4.  On 14 March 1969, the applicant was convicted by a special court-martial of being AWOL from 19 December 1968 to 25 February 1969 and for violating his parole.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

5.  Item 44 (Time Lost), of the applicant's DA Form 20 (Enlisted Qualification Record), shows additional periods of AWOL from 15 June 1969 to 21 October 1969 and from 19 November 1969 to 3 December 1969.

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 (Armed Forces of the United States Report of Transfer or Discharge) which shows that on 11 February 1970, he was discharged, in pay grade of E-1, under the provisions 
of Army Regulation 635-40, for physical disability.  He was furnished a general discharge.  He had a total of 7 months and 22 days of active duty service.  Item 11c (Reason and Authority for Separation), of his DD Form 214, shows the entry "SPN (Separation Program Number) 277", which stands for "physical disability existing prior to service (EPTS) - established by medical board and individual made application for discharge by reason of physical disability.  Not entitled to receive disability separation pay."  Item 30 (Remarks), of his DD Form 214, shows the entry "Severance Pay Not Auth (Authorized)" and the entry "465 days lost." 

7.  The applicant's medical records and MEB (Medical Evaluation Board) are unavailable for review.

8.  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.

9.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  
10.  Chapter 9, of the above referenced regulation, in effect at that time, pertained to expeditious discharge for disabilities that EPTS.  In stated, in pertinent part, that Soldiers who were unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during the period in which the Solider was entitled to basic pay would be expeditiously discharge.  Soldiers would be issue an honorable or general discharge as appropriate.  It also indicated that in item 11c (Reason and Authority), of the Soldier’s DD Form 214, the SPN of "277" (Physical Disability) would be shown and an entry of “Severance pay not authorized” would be made in item 30.

11.  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.  The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army; however, the applicant's record contains a copy of his DD Form 214 he was issued on his separation.  This document lists the authority for his separation as Army Regulation 635-40, with an SPN of "277" which indicates physical disability, EPTS.  

2.  In the absence of evidence to the contrary, Government regularity is presumed.  The applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant's DD Form 214 indicates that he had 465 days of lost time.  The applicable regulation states that an individual would be issued an honorable or a general discharge, as appropriate.  In view of the applicant's extensive number of days of lost time, it is felt that the command did not believe he merited a fully honorable discharge.  An absence of this duration is serious and could have earned him either a bad conduct or dishonorable discharge if he had been tried by court-martial for his absences; therefore, there is insufficient evidence to show that the applicant now deserves an upgrade of his general discharge.  



4.  The applicant alleges, in effect, that he was bipolar with worse bleeding ulcers; he received over 50 pints of blood so the ulcers are worse; that he could have continued being a good Soldier had he not been shot; and that he decided to get out because he could not do what he could do before he was shot.  His medical records are unavailable for review.  The applicant has provided no evidence, and there is none, to support his allegations.  

5.  The applicant claims that he was told that he would get an honorable discharge.  The applicant provided no evidence to support his claim and it is unlikely he was told this in view of his having received two special courts-martial actions and he had compiled extensive AWOL time.  He was issued a general discharge which it is believed the command felt was appropriate based on his overall character of service.  

6.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  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

___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)                                         AR20080005486



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005486



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1