IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011675 


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 that his general discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he just wants his discharge upgraded.  He needs to see a doctor; he has not seen a doctor in 3 years, because he has no insurance.  

3.  The applicant provides medical treatment and laboratory documents from 2008 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.  The applicant’s record shows he enlisted in the Regular Army on 28 March 1973.  It also shows he was trained in and awarded military occupational specialty (MOS) 71G (Medical Records Specialist).  

3.  The record shows the applicant was promoted to private first class/E-3 (PFC/E-3) on 1 February 1974, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-2 (PV2/E-2) and to private/E-1 (PV1/E-1), for cause, on 23 October 1974.  The applicant’s record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes his accrual of 66 days of time lost during three separate periods of being absent without leave (AWOL) between 
5 September and 2 December 1974.  It also includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate dates for the offenses indicated:  on 23 October 1974, for being AWOL from 5 September through 
9 October 1974; and on 17 December 1974 for being AWOL from 1 November through 2 December 1974.  

5.  On 10 January 1975, the unit commander notified the applicant he was recommending the applicant for discharged under the provisions of Army Regulation 635-200, by reason of unsuitability (apathy).   

6.  On 15 January 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, of the rights available to him and of the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed a statement in which he waived his right to consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a GD.  

7.  On 17 January 1975, the separation authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, by reason of unsuitability with a GD.  On 24 January 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 
7 months, and 21 days of creditable active military service and he accrued 
66 days of time lost due to being AWOL.  



8.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13of the version of the regulation in effect at the time of the applicant’s discharge applied to separation for unfitness and unsuitability.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted an HD or a GD was issued as determined by the separation authority based upon the individual’s entire record.

9.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be upgraded to an HD to assist him in obtaining medical treatment has been carefully considered.  However, discharges are not upgraded solely for the purpose of obtaining benefits, medical or otherwise.  

2.  The available evidence shows the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's record reveals a disciplinary history that includes his accrual of 66 days of lost time due to being AWOL and his acceptance of NJP on two separation occasions.  This record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an HD.  Therefore, it would not be appropriate to upgrade his discharge at this late date.  

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)                                         AR20100011675



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011675


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1