BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100000032 


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 under other than honorable conditions be upgraded to a medical discharge under honorable conditions so he will be eligible to receive education benefits.

2.  The applicant states, in effect, that in spite of his complaints of a foot injury, his commander completely ignored his medical condition and wanted him to attend retraining with another unit.  The applicant also states he refused to attend retraining, which resulted in him being court-martialed for missing movement.  He contends the servicing medical unit could not handle the task of removing his ingrown toenail.  He further states the reason for this request is because he is unable to afford the expense of additional education he needs in order to progress in the job market.

3.  The applicant provides no documentary evidence 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 27 August 1974.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  The highest rank/pay grade he attained while serving on active duty was private first 
class/E-3.  However, at the time of separation he held the rank/pay grade of private/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for committing the following offenses in violation of the Articles of the UCMJ indicated:

* Article 111, for reckless driving
* Article 92, for speeding
* Article 86, for failing to report to his appointed place of duty at the prescribed time

4.  The applicant's record also reveals he was found guilty by a special court-martial of violating Article 87 of the UCMJ for missing movement.

5.  The applicant's record also contains a log rendered by his unit commander which shows he received 31 oral reprimands during the period 11 February 1976 through 5 August 1976 for the following offenses:

* Disobeying a lawful order
* Failing barracks inspections
* Failing in-ranks inspections
* Violating a lawful order
* Misconduct
* Violating a battalion order
* Dereliction of duty

6.  On 4 August 1976, the applicant signed a form indicating he desired to be administratively discharged under the provisions of the appropriate regulations pertaining to his situation at the time.


7.  On 6 August 1976, the applicant rendered a statement on a Retraining Brigade (RB) Form 7-R wherein he said, in effect, he felt he'd proven himself to the cadre and anyone else who was observing him, that he was capable of becoming a Soldier.  He also stated that he was willing to return to duty and give it his best effort for the remaining 2 years of his enlistment.  However, he concluded that he could not and would not push himself to go back through another cycle of training.  

8.  On 9 August 1976, the applicant’s unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for misconduct.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to appear before an administrative hearing by a board of officers, to submit written statements in his own behalf, to be represented by counsel at any hearing, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  The applicant acknowledged his understanding of the unit commander's explanation of why he was being recommended for discharge as well as his rights in the discharge proceedings on the same date.

9.  On 11 August 1976, the applicant underwent a medical examination as part of his pre-separation processing.  Both a Standard Form 93 (Report of Medical History) and a Standard Form 88 (Report of Medical Examination) rendered on that date indicate his feet were normal and there is no indication he was experiencing any medical issues with either foot.

10.  On 12 August 1976, the applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, for misconduct because of frequent incidents of a discreditable nature.  The unit commander stated that the applicant demonstrated little desire or willingness to rehabilitate regardless of chain of command efforts.

11.  On 12 August 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and the rights available to him.  The applicant was also informed that if he were issued a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life.  He was also informed that if he were issued an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  Following his consult with legal counsel, the applicant requested to appear in person for consideration of his case by a board of officers and to be represented by counsel during the board.  He elected not to submit statements in his own behalf.

12.  On 10 September 1976, the applicant appeared before a board of officers who considered his case and recommended he be retained on active duty and recycled through training.  The applicant's counsel stated his problems were such that he could not be sure what was going to happen with his fiancé and expected child so, he desired to be physically present with her as soon as possible.  His counsel conveyed he felt that his problems could be beyond his control by the time he successfully completed a training recycle.  In light of the applicant's unwillingness and refusal to accept recycle for further evaluation, the board determined that he should be eliminated from the Army.  The board recommended he be eliminated from the service for misconduct with issuance of an Undesirable Discharge Certificate.

13.  On 15 September 1976, the separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for misconduct and the issuance of an Undesirable Discharge Certificate.

14.  On 17 September 1976, the applicant signed a DA Form 3081-R (Periodic Medical Examination - Statement of Exemption) indicating his medical condition had not changed since he underwent his medical examination on 11 August 1976.  His record is devoid of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service.  

15.  On 17 September 1976, the applicant was discharged accordingly.  Blocks 9a - 9f of the DD Form 214 (Report of Separation from Active Duty) issued to him at the time shows that he was discharged under the provisions of paragraph 
13-5a(1) (Misconduct), chapter 13 of Army Regulation 635-200, that he received an "Under Other Than Honorable Conditions" characterization of service, and he was issued an Undesirable Discharge Certificate.

16.  The applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting to have his undesirable discharge upgraded.  United States Army Reserve Personnel Center, Saint Louis, Missouri, letter, dated 30 July 1986, informed the applicant that the ADRB, after careful consideration of his records and all other available evidence, had determined that he was properly and equitably discharged.  Accordingly, the Secretary of the Army directed that the applicant be advised that his request for change in the character and/or reason of his discharge had been denied.

17.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

18.  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.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his undesirable discharge under other than honorable conditions to a medical discharge under honorable conditions so he will be eligible to receive education benefits was carefully considered and determined to lack merit.
2.  The applicant's record is devoid of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service.  

3.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

4.  Evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his undesirable discharge to a general discharge or to have the narrative reason for separation changed.

6.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.  Furthermore, the applicant has failed to overcome the presumption of fitness.  The presumption is overcome if the applicant can show, through a preponderance of evidence, that because of a disability, he was physically unable to perform adequately the duties of his office, grade, rank or rating prior to his separation from the Army.  

7.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.
Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit any 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)                                         AR20100000032





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ABCMR Record of Proceedings (cont)                                         AR20100000032



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