IN THE CASE OF:	

		BOARD DATE:	 16 September 2008 

		DOCKET NUMBER:  AR20080009786 


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 discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions or an honorable discharge.

2.  The applicant states he was unfairly treated.  He further states, in effect, he has/had mental issues.  He states he desires medical care from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional evidence or official documentation in support of his 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 military personnel record shows he enlisted in the California Army National Guard (CAARNG) on 22 April 1972 for a period of 6 years.  He completed a period of active duty from 17 August 1972 to 22 December 1972 and successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 64C (Motor Transport Operator).

3.  On 7 May 1973, the applicant was notified he was being processed for involuntary active duty due to unsatisfactory participation as an obligated Reservist.

4.  On 20 June 1973, the applicant was involuntarily ordered to active duty in the U.S. Army Reserve for 19 months and 24 days effective 24 July 1973.

5.  On 20 August 1973, the applicant reported to the 839th Transportation Company at Fort Bragg, North Carolina.  On 6 September 1973, he was assigned to the 126th Transportation Company at Fort Bragg.

6.  On 11 February 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having a controlled substance in his possession and for violating a general regulation by appearing off the military reservation in a fatigue uniform. 

7.  On 16 May 1974, the applicant departed absent without leave (AWOL) and was dropped from the rolls on 15 June 1974.  He surrendered to Federal authorities and was returned to military authorities on 19 January 1975.

8.  The applicant's separation processing package was not available for review.

9.  The applicant's service medical records were not available for review.

10.  On 14 February 1975, the applicant was discharged under the provisions of 
Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service and was issued an Undesirable Discharge Certificate.  He had completed 9 months, and 22 days of active service that was characterized as under other than honorable conditions.  He had 248 days of time lost.  

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

12.  Army Regulation 635-200, in effect at the time of the applicant's discharge, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was not treated fair and he has/had mental health issues.  He also contends he needs VA medical care.

2.  The applicant's service medical records were not available for review and there are no other official records that would indicate the applicant suffered from a mental condition during his period of active service or on the date of his discharge.  Therefore, this issue can not be considered as a mitigating factor in this case.

3.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

4.  Although the applicant's separation package was not available, it is presumed that the Army's administrative processing of the applicant for discharge was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  In view of the above, there is insufficient basis to upgrade the characterization of the applicant's discharge to honorable or under honorable conditions.

7.  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 that requirement.

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)                                         AR20080009786





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ABCMR Record of Proceedings (cont)                                         AR20080009786



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