IN THE CASE OF:	  

		BOARD DATE:	    20 March 2012

		DOCKET NUMBER:  AR20110017850 


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 correction of his records to show he was medically discharged and an upgrade of his general, under honorable conditions discharge.

2.  The applicant states he has medical/mental health conditions that began during his military service and adversely affected his duty performance.  He adds that correction of his discharge will allow him to apply to the Department of Veteran Affairs for medical benefits. 

3.  The applicant provides, in support of his request, his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two letters of support.

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 22 August 1978 for a period of 3 years.  Upon completion of training, he was awarded military occupational specialty 64C (Motor Transport Operator).

3.  He was assigned to Company B, 249th Engineer Battalion (Combat Heavy), Germany, on 23 December 1978.

4.  On 11 July 1979, the applicant's commander recommended the applicant be barred from reenlistment.  The basis for his action was the applicant failed to show a responsible attitude towards his duty performance.  

	a.  He noted the applicant was unable to follow instructions or complete his duties with any sense of urgency or accuracy.

	b.  He also noted that the applicant was in extremely poor physical condition, could not run 2 miles within 17 minutes or pass any of the events on the Army Physical Fitness Test.

	c.  The applicant acknowledged having been counseled and advised of the basis of the action on 11 July 1979.  He elected not to submit a statement in his own behalf.

	d.  The brigade commander approved the bar to reenlistment on 26 July 1979.

5.  A statement by the unit's operations sergeant, dated 17 January 1980, confirmed that a review of the Company Sick Call Register Book revealed the applicant went on sick call on 28 occasions for various medical complaints during the period 2 January through 26 November 1979.

6.  On 22 January 1980, the company commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-31 Expeditious Discharge Program (EDP), on the basis that he did not possess the motivation, self-discipline, or attitude for continued service.

7.  On 28 January 1980, the applicant acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the EDP and he voluntarily consented to the discharge.  The applicant acknowledged that he had been afforded the opportunity to consult with an officer of the Judge Advocate General's Corps and that he elected to submit statements in his own behalf.  (The separation packet does not contain any statements in behalf of the applicant).  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.  He further acknowledged that he understood he could withdraw his voluntary consent to the discharge any time prior to the date the discharge authority approved his discharge.

8.  The company commander recommended approval of the applicant's separation under the EDP.  His recommendation was based on the applicant having received repeated counseling, nonjudicial punishment on two occasions, and a bar to reenlistment that was imposed against him on 26 July 1979.

9.  The separation authority approved the recommendation and directed the applicant be issued a General Discharge Certificate.

10.  The applicant's DD Form 214, as corrected by a DD Form 215 (Correction to DD Form 214), dated 11 July 1980, shows he was discharged on 12 March 1980 under the provisions of Army Regulation 635-200, paragraph 5-31h(2), EDP for failure to maintain acceptable standards for retention with service characterized as under honorable conditions.  He completed 6 months and 21 days of active service.

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

12.  In support of his request, the applicant provides letters of support from two individuals who have known him for 4 years.  They attest to the applicant's back and leg injuries and his mobility challenges.  They also state he is unable to work and he has financial difficulties.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  The regulation, in effect at the time, provided the policy and procedures for separating individuals in accordance with Chapter 5 (Separation for the Convenience of Government), paragraph 5-31, under the EDP.  The EPD provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An honorable discharge or general discharge could be issued under this program.  

14.  Army Regulation 635-200, paragraph 3-7a, provides that 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 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 contends his general, under honorable conditions discharge should be corrected to show he was honorably discharged based on medical reasons.

2.  Records show the applicant went on sick call at least 28 times in less than
11 months for various ailments and complaints.  However, this does not establish that he had any unfitting medical condition(s).

	a.  There is no evidence of record, and the applicant provides insufficient evidence, to support his claim that he had medical/mental health conditions that began during his military service and prevented him from performing his duty, or that he had a medically unfitting condition.

	b.  Thus, in view of the foregoing, the applicant's contention is insufficient to warrant a medical discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Records show the applicant received nonjudicial punishment on two occasions, he was counseled six times, and a bar to reenlistment was imposed against him.  In addition, he completed less than 7 months of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  The ABCMR does not grant requests for change or upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for benefits should be addressed to the Department of Veterans Affairs.


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)                                         AR20110017850



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ABCMR Record of Proceedings (cont)                                         AR20110017850



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