IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090015232 


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 undesirable discharge be changed to reflect that he was honorably discharged by reason of physical disability.

2.  The applicant states, in effect, he believes he should have received a medical discharge because his misconduct may have been related to his medical problems at the time.  He goes on to state that if someone will review his medical records they will see that he had medical issues.  He also states that he was experiencing dizziness, fainting, blackout spells, shortness of breath and pain in his chest.  He had several of those spells after his discharge and later it was determined that he had diabetes and heart problems.  He ended up having heart surgery.  He states his medical conditions are under control and he no longer has behavior problems; therefore, he believes his health-elated issues contributed to his behavior and that he may have upset someone and was issued the wrong discharge.

3.  The applicant provides a copy of his enlistment contract, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his separation physical examination, miscellaneous documents from his health records, a DA Form 26 (Record of Court-Martial Conviction), and a Special Court-Martial order.





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 records are not available for review.  An exhaustive search was made for the records and they could not be located.  Officials at the National Archives and Records Administration indicate that they have no records on file.  However, the documents provided by the applicant with his application are sufficient to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army in Portland, Oregon on 11 February 1960 for a period of 3 years and training in a field artillery military occupational specialty (MOS).  At the time of his enlistment he denied any significant medical history.

4.  He completed basic training at Fort Ord, California and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of his AIT he was transferred to Germany for assignment to a howitzer battery in Ansbach, Germany.

5.  Between 8 May and 18 October 1961, he was convicted by two summary court-martials and one special court-martial for charges ranging from being absent without leave (AWOL) to disobeying a lawful order.

6.  On 18 October 1961, the applicant underwent a separation physical examination and was deemed to be qualified for separation.

7.  The facts and circumstances surrounding his administrative discharge are not present in the available evidence.  However, the applicant has provided a duly constituted DD Form 214 signed by him which reflects he was issued an undesirable discharge at Fort Hamilton, New York on 21 December 1961, under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with military and civil authorities.  He completed 1 year, 8 months, and 5 days of total active service. He also had 66 days of lost time due to being AWOL and in confinement.  He had served 1 year, 3 months and 13 days of overseas service.

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

9.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.  

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 violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions were considered and given his repeated misconduct, his otherwise undistinguished record of service, and the lack of evidence to establish that he was unfit for separation and should have been processed through medical channels, his contentions are not sufficiently mitigating to warrant an upgrade of his discharge or to show he was separated by reason of physical disability.

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)                                         AR20090015232



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ABCMR Record of Proceedings (cont)                                         AR20090015232



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