IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029505 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  He states he is requesting an upgrade of his discharge so he can seek the medical benefits he needs for his service-connected injury.  He sustained a head injury 2 to 3 months prior to his discharge.  He was admitted to the hospital and he was unconscious for 3 days.  Since that time he has suffered from memory loss and mental issues.  He was released from the hospital and discharged before any medical or mental evaluation board could be requested or he could be evaluated.  All records were kept from him at the time of his discharge.

3.  He provides no additional evidence.

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 20 February 1980 in the grade of E-1 for a period of 4 years.  He completed training and he was awarded military occupational specialty 75B (Personnel Administrative Specialist).

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for the following:

* on 20 May 1980 for wrongfully possessing marijuana on 16 May 1980
* on 23 November 1981 for being absent without leave (AWOL) from 11 to 16 November 1981

4.  On 14 December 1981, he was convicted by a summary court-martial of one specification each of:

* failing to repair on 27, 28 , 29, and 30 November  and 1 December 1981
* being AWOL from 3 to 4 December 1981

5.  He was again reported AWOL on 7 January 1982 and he returned to military control on 11 January 1982.

6.  A DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), dated 3 January 1982, shows "on 3 January 1982, 0800 hrs.  Slipped and fell on ice and struck head, while shoveling snow.  Place unknown."  He was diagnosed with a mild concussion, no sequelae.  He was released from the hospital and returned to duty on 5 January 1982.

7.  There is no evidence he was referred to a medical evaluation board (MEB) or a physical evaluation board (PEB) for consideration of any medical condition resulting from the foregoing diagnosis.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 February 1982, shows his behavior was found to be normal, he was fully alert, and his mood was level.  His thinking process was found to be clear, his thought content was normal, and his memory was good.  No significant mental illness was found. He was determined to be mentally responsible, able to distinguish right from wrong, and able to adhere to the rights.  He was also found to have met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 
9.  A Standard Form 88 (Report of Medical Examination), dated 4 February 1982, administered for the purpose of an administrative separation, shows he was found qualified for separation.  There are no entries for any medical condition that would warrant further medical evaluation or discharge.

10.  On 12 February 1982, the applicant was notified of the company commander's intent to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-33, for misconduct due to frequent incidents of a discreditable nature.  The company commander stated the applicant's conduct and efficiency were unsatisfactory.  The applicant's record reflected his highest grade held was E-3, he had a court-martial conviction, and two NJPs under Article 15, UCMJ.  The applicant was sent to the brigade for the purpose of receiving correctional training; however, his continued actions precluded accomplishment of the objective as evidenced by the resumption of behavior, attitude, and ability.  The applicant demonstrated little desire for returning to duty.

11.  On 18 February 1982, the applicant acknowledged through counsel the proposed separation action.  He also acknowledged the effects of issuance of a general discharge or a UOTHC discharge.  He further acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He elected not to submit a statement in his own behalf.

12.  On 2 March 1982, the separation authority approved the applicant's discharge with a UOTHC Discharge Certificate.

13.  He was discharged in pay grade E-1 on 5 March 1982 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities, with a UOTHC discharge.  He was credited with 1 year, 10 months, and 13 days of creditable active service with 63 days of time lost.

14.  On 28 August 1989, the Army Discharge Review Board denied his request for an upgrade of his discharge.

15.  Army Regulation 635-200, paragraph 14-33b, then in effect, established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave.  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 UOTHC discharge was normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for separation specifically allowed such characterization.

18.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished twice under Article 15 and in December 1981 he was convicted by a summary court-martial of five specifications of failing to repair and for being AWOL.  On 3 January 1982, he was diagnosed with a mild concussion and hospitalized.  He was returned to duty on 5 January 1982.  

2.  A DA Form 3822-R, dated 4 February 1982, shows he was found to be mentally responsible and met the retention standards prescribed in Army Regulation 40-501, chapter 3.  Additionally, on 4 February 1982, he was medically cleared for separation.

3.  He has not shown his discharge was unjust or his 1982 mild concussion prevented him from completing his enlistment.  He provided no evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

5.  The ABCMR does not upgrade discharges based solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

6.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100029505



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ABCMR Record of Proceedings (cont)                                         AR20100029505



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