IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000283 


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 an upgrade of his undesirable discharge (UD) to a general discharge.

2.  The applicant states he requested to receive "co-occurring" treatment while in the service, but he was discharged instead of being allowed to get treatment.  Due to being dyslexic, he was unable to write and had difficulty reading.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 on 24 July 1972, completed training, and was awarded the military occupational specialty 45B ( Small Arms Repairman).

3.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on:

	a.  1 August 1973, for possession of marijuana and use of provoking gestures toward a commissioned officer;

	b.  13 December 1973, for disobeying a lawful order and disrespect toward a commissioned officer;

	c.  25 March 1974, for failure to go to his appointed pace of duty on three occasions; and

	d.  29 October 1974, for being absent without leave (AWOL) from 9 through 15 September 1974, failure to go to his appointed pace of duty, and two occurrences of disobeying a lawful order from an noncommissioned officer.

4.  The applicant was also AWOL from 26 April 1974 through 28 June 1974, 24 September 1974 through 14 October 1974, 2 through 17 December 1974, and 1 through 5 January 1975, for a total of 116 days.

5.  On 18 December 1974, the applicant's unit commander initiated separation action for unfitness due to frequent incidents of a discreditable nature.

6.  The applicant acknowledged the proposed separation action and waived his rights to counsel, a board of officers, to a personal appearance before a board of officers, and to make a statement on his own behalf.

7.  On 24 January 1975, the discharge authority approved the discharge recommendation for unfitness, directed the applicant be reduced to the lowest enlisted grade and receive a UD.  His DD Form 214 shows the separation authority as Army Regulation 635-200 (Personnel Separations), paragraph 
5-13a(1).

8.  The applicant was separated on 3 February 1975 with a UD.  He had 2 years, 2 months, and 17 days of creditable service with 116 days of lost time.

9.  On 17 March 1978, the Army Discharge Review Board denied the applicant's request to upgrade his discharge and did not address the authority or narrative reason for discharge.

10.  The record contains no diagnosis or indication that the applicant was diagnosed with a personality disorder while on active duty.

11.  Taber's Medical Dictionary describes dyslexia as a familial learning disability involving difficulties in acquiring and processing language that is typically manifested by a lack of proficiency in reading, spelling, and writing.

12.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  It provided, as then in effect, at:

	a.  paragraph 3-7a, that an honorable discharge was a separation with honor. 
The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty;

	b.  paragraph 3-7a(1), "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the Uniform Code of Military Justice Article 15…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service";

	c.  paragraph 3-7b, a general discharge was a separation under honorable conditions issued to a Soldier whose military record was satisfactory, but not so meritorious as to warrant an honorable discharge;

	d.  paragraph 3-7c, that a UD was issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier;

	e.  paragraph 5-13 was the authority for separating personnel assigned to installations or units scheduled for inactivation.  [Paragraph 5-13 is currently the provision for separation of a Soldier diagnosed with a personality disorder, not amounting to disability under Army Regulation 635-40, that interferes with assignment to or performance of duty]; and 

	f.  paragraph 13-5a(1), provided for separation for unfitness, which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he requested to receive "co-occurring" treatment while in the service but was discharged instead of being allowed to get treatment.  He is dyslexic and was unable to write and had difficulty reading.

2.  With the exception of the DD Form 214, all evidence shows the applicant was discharged for unfitness under Army Regulation 635-200, paragraph 13-5.  It appears that in the preparation of the DD Form 214, a typographical error occurred transposing the paragraph numbers to 5-13 versus 13-5.

3.  The applicant has not provided and the record does not contain any evidence that he was or is suffering from dyslexia or that this condition, if present, was the proximate cause of the misconduct that resulted in his separation and UD.

4.  Furthermore, dyslexia is not a personality disorder, but rather a congenital or developmental learning disability.

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

6.  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 failed to submit evidence that would satisfy this requirement.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20100000283



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ABCMR Record of Proceedings (cont)                                         AR20100000283



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