IN THE CASE OF:	  

		BOARD DATE:  8 March 2012

		DOCKET NUMBER:  AR20110017489 


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 to an honorable discharge.

2.  He states he reenlisted twice because he loved the Army.  He believes he had a mental collapse after his tank fired on and killed a Korean civilian.

3.  He provides no additional documentary evidence in support of this 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.  His military records show he enlisted in the Regular Army on 28 June 1969.  He completed training, was awarded the military occupational specialty of armor crewman, and was promoted to pay grade E-5.
3.  He reenlisted on 7 December 1970 and on 6 July 1971. 

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 15 May to 6 June 1972.

5.  He accepted nonjudicial punishment (NJP) on 14 June 1972.  Due to incomplete records the reason for the NJP is not apparent.
 
6.  His military records do not contain any evidence of a mental collapse.  His medical records are not available for review.

7.  His complete discharge packet is not contained in his records.  However, on 31 January 1973, he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 13, with a separation program number of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities), with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed 3 years, 6 months, and 11 days of total active service with 23 days time lost.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally given.

	b.  Paragraph 13-10 stated when an individual was to be processed for separation, the unit commander must ensure that an appropriate medical evaluation and mental status evaluation was obtained.  Sufficiently detailed information about the reasons for considering the individual unfit or unsuitable should be furnished to allow the medical examiners a thorough understanding of the contemplated action.

	c.  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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	d.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence to support his contention he had a mental collapse after his tank fired on and killed a Korean civilian.  He was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had 23 days of time lost.  This misconduct renders his service unsatisfactory.

2.  While his discharge packet is not available, 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.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable or a general discharge.

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)                                         AR20110017489



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ABCMR Record of Proceedings (cont)                                         AR20110017489



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