IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090002178 


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 an honorable discharge or retirement by reason of physical disability.  

2.  The applicant states that he developed coping problems after he was beaten about the body and head on Christmas Eve of 1980.  He goes on to state that he was treated at the hospital at Fort Riley, Kansas on Christmas Eve and that he has been in and out of mental institutions since his discharge.

3.  The applicant provides no additional documents with 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 enlisted in the Regular Army in Philadelphia, Pennsylvania on 25 July 1979 for a period of 3 years, training as a cannon crewman and assignment to Europe.

3.  The applicant completed one-station unit training at Fort Sill, Oklahoma and was transferred to Germany on 10 November 1979.  He was advanced to pay grade E-2 on 30 January 1980.

4.  On 1 October 1980, the applicant was convicted by a special court-martial of two specifications of being disrespectful towards a superior noncommissioned officer and one specification of making a false statement.  He was sentenced to confinement at hard labor for 70 days, reduction to pay grade E-1 and a forfeiture of pay.

5.  The applicant was transferred to the United States Army Retraining Brigade (USARB) at Fort Riley, Kansas on 9 October 1980.

6.  On 11 December 1980, he underwent a medical/physical examination for the purpose of being discharged under the provisions of Army Regulation 635-200, chapter 14.  He indicated that he was in good health.

7.  The mental status evaluation conducted on the same date indicates that he had no mental illness, that he could distinguish right from wrong and that he could adhere to the right.

8.  A review of his medical records fails to show any entries for treatment on 24 December 1980 or any treatment for injuries to the head and body.

9.  The facts and circumstances surrounding his administrative discharge are not present in the available records because they were loaned to the Veterans Administration in Newark, New Jersey in July 1981.  However, his records do contain a duly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was authenticated by the applicant.

10.  The applicant's DD Form 214 shows that he was discharged under other than honorable conditions from the USARB on 8 January 1981, under the provisions of Army Regulation 635-200, chapter 14, due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 3 months and 20 days of total active service and he had 54 days of lost time due to being in confinement.

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.

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.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

2.  The applicant's contentions have been noted; however, he has failed to show through the evidence submitted with his application or the evidence of record that he was unfit for separation and that he should have been processed under medical disability channels. 

3.  Therefore, given the applicant's overall record of undistinguished service, there appears to be no basis to change the character and reason for his discharge.
4.  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.

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.




      _______ _XXX   _______   ___
               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)                                         AR20090002178



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ABCMR Record of Proceedings (cont)                                         AR20090002178



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