IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090004383 


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 be upgraded and the reason changed to a medical discharge.

2.  The applicant states, in effect, that although he was discharged for undesirable issues, he was being considered for a medical discharge and therefore requests that the Board upgrade his discharge to under honorable conditions and change the reason to medical.  He also states, in effect, that he has bigger medical problems now and would like to be able to use the Department of Veterans Affairs medical facilities.

3.  The applicant submits no additional documents 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.  On 21 July 1972, the applicant enlisted in the Regular Army.

3.  The applicant's record contains a copy of a letter from the Chief, Professional Services, dated 10 October 1972, to the applicant's parents which states that the applicant was seen both by the cardiologist at Fort Ord and the Cardiology Department at Letterman General Hospital in San Francisco, CA, to determine his medical condition and his capabilities for future military service.

4.  On 15 February 1973, charges were preferred against the applicant for being absent without leave (AWOL) from on or about 17 November 1972 to 15 December 1972 and from 8 January 1973 to 9 February 1973.

5.  The applicant's record contains a copy of a Standard Form 88 (Report of Medical Examination), dated 20 February 1973, which shows in item 29 (Heart) an evaluation of normal.

6.  On 2 March 1973, the unit's commander recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5a(1), for frequent incidents of a discreditable nature with civil or military authorities.  The commander’s recommendation was based on the applicant’s misconduct.  The commander further stated that the applicant was not amenable to further rehabilitation and other disposition is inappropriate because of his misconduct.

7.  On 5 March 1973, a mental status evaluation cleared the applicant for any administrative action deemed appropriate.

8.  The applicant's separation packet contains a recommendation for approval and instant discharge, dated 30 March 1973, in which the commander also states that the applicant was convinced that, despite scientific proof to the contrary, he suffered from the same rheumatic heart disorder that killed his sister.  He states that the applicant underwent all available tests including cardiographs and heart catheterization in an attempt to prove the applicant's fitness to him.  The tests showed normal function.  He states that the applicant went AWOL and his parents refused to accept the results.

9.  On that same date, the applicant acknowledged receipt of the commander’s recommendation and proposed actions under the provisions of Army Regulation 635-200.  The applicant waived consideration of his case by a board of officers and elected not to provide a statement in his own behalf.

10.  The applicant also acknowledged that he understood that if an Undesirable Discharge Certificate were issued he could be deprived of many or all Army benefits, that he could be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

11.  On 9 April 1973, the applicant signed a DA Form 3082-R (Statement of Medical Condition) which states the he underwent a separation medical examination more than 3 working days prior to his separation and to the best of his knowledge there has been no change in his medical condition.

12.  On 26 April 1973, the appropriate authority approved the recommendation to administratively separate the applicant and directed that he receive an undesirable discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  On 10 May 1973, the applicant was discharged with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 7 months and 20 days of creditable active service and he had 60 days of lost time.

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

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 (Separation for Unfitness or Unsuitability) of this Army regulation provides the procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in their case.

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.  

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.

17  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

DISCUSSION AND CONCLUSIONS: 

1.  The applicant’s contention that his discharge should be upgraded and changed to a medical discharge was carefully considered.

2.  There is no evidence in the applicant's record nor did the applicant submit any evidence that shows he was being considered for a medical discharge from the military.  On the contrary, the evidence of record shows that after exhaustive medical tests performed by a cardiologist he was cleared for continued service.  The evidence of record shows that the applicant refused to accept the test results and continually went AWOL.  Therefore, he was discharged with an under other than honorable conditions discharge and his records are correct as currently constituted.  There is no basis to change the applicant's character of service or the reason for his discharge.

3.  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

____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)                                         AR20090004383



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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