IN THE CASE OF:
BOARD DATE: 12 July 2011
DOCKET NUMBER: AR20100030150
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 general discharge be changed to an honorable discharge due to medical reasons.
2. The applicant states he filed for disability in 1972 and his discharge had been changed from a medical under honorable conditions to just an under honorable conditions discharge.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 applicants 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 applicants 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 9 October 1970 for a period of 3 years. He did not complete initial entry training and he was not awarded a military occupational specialty. The highest rank/grade he held was private (PV1)/E-1.
3. The specific facts and circumstance leading to his discharge are not in the available records. However, the DD Form 214 he was issued shows he was discharged on 10 September 1971 under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 9 (Expeditious Discharge for Disabilities Existing Prior to Service), paragraph 9-6 (Separation action by member's commanding officer). He received a character of service of under honorable conditions and issuance of a DD Form 257A (General Discharge Certificate) with a Separation Program Number (SPN) of 277 (physical disability, EPTS (existed prior to service), established by medical board, discharge by reason of physical disability upon application by individual, not entitled to severance pay.). His DD Form 214 shows he completed 7 months and 25 days of total active service with 97 days of lost time.
4. Army Regulation 635-5 (Personnel Separations-Separation Documents), Appendix A, in effect at the time, shows SPN 277 corresponded to a physical disability existing prior to service, established by a medical board, and the individual made application for discharge by reason of physical disability (not entitled to receive severance pay).
5. Army Regulation 635-40, chapter 9 provides for the discharge of enlisted personnel who in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), are unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay. Paragraph 9-6 states when the findings and recommendations of the medical board that a member should be separated under this chapter have been approved and the member has submitted the required application for separation, the application and medical board will be forwarded to the member's commanding officer who will promptly refer the case to the separation authority for discharge of the member.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members 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 DD Form 214 shows he was discharged from the Regular Army due to his own application for discharge by reason of physical disability that existed prior to his entry in the service. It also shows he had 97 days of lost time.
2. The applicant has provided no evidence to support his contention that the reason for his discharge had been changed. The Board starts its consideration with a presumption of regularity, that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. It is presumed that his DD Form 214 in correct as constituted in regard to the reason for and characterization of service of his discharge.
3. In view of the foregoing, there is no basis for granting the applicant's 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) AR20100030150
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