IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110023113 


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 general discharge to an honorable discharge.

2.  The applicant makes no statement on his behalf. 

3.  The applicant provides a statement from a nurse practitioner.

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 13 March 1984 at the age 17.  He completed the training requirements and he was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer).  The highest rank/grade he attained while serving on active duty was private/E-2.
However, he held the rank/grade of private/E-1 at the time of discharge.

3.  His records show that on more than one occasion he received counseling for failing to report to his appointed place of duty at the time prescribed.

4.  He accepted nonjudicial punishment (NJP) under the provisions of           Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 5 September 1984, for failing to go to his appointed place of duty at the time prescribed (1530 and 1600 hours) on 31 August 1984
* on 2 October 1984, for failing to go to his appointed place of duty at the time prescribed on 20, 21, and 24 September 1984

5.  On 24 October 1984, the applicant was notified of the unit commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13 for unsatisfactory performance.  

6.  The applicant’s record contains a statement from his platoon sergeant, dated 29 October 1984, who attests to the applicant’s unwillingness to follow instructions, inability to make formations, account for his personal clothing and property, and his indebtedness to local merchants.  He further states the applicant is a habitual liar who tries to stretch or twist the truth to suit himself and is unsuitable to remain on active duty. 

7.  On 16 November 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

8.  On 20 November 1984, the separation authority waived further rehabilitation efforts, approved the applicant's discharge under the provisions of chapter 13, Army Regulation 635-200, and directed that he be issued a general discharge.

9.  On 28 November 1984, the applicant was discharged accordingly.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 8 months and 16 days of creditable active military service with no lost time.

10.  There is no evidence that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.
11.  The applicant’s military records are devoid of any evidence and he has not provided any evidence which shows he sought help for or was diagnosed with a thyroid disorder or any other condition at the time of his discharge.

12.  However, the applicant provides a statement from a nurse practitioner who states, at the age of 12, prior to the applicant entering the military he was diagnosed with thyroid cancer which remained in remission until likely late 1983 or early 1984, but was not diagnosed until after the applicant was discharged.  Subsequent to his discharge from the Army he was diagnosed with reoccurring thyroid cancer and he had a total thyroidectomy at the Ruby Cancer Research Center in Tucson, AZ.  While in the military the applicant experienced periods of being lethargic, exhausted, he slept all of the time and as a result he was put on disciplinary action.  She further opines the applicant's symptoms of thyroid disease likely caused the numerous poor decisions he made which resulted in his discharge action.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A general or honorable discharge was considered appropriate.

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 available evidence shows his duty performance was tarnished by two instances of NJP and a history of negative counseling.  Accordingly, his chain of command initiated separation action against him.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors which would have jeopardized his rights.  His general discharge is commensurate with his overall record of military service.  

2.  Notwithstanding the statement provided by his nurse practitioner, there is no evidence in his military records nor has the applicant provided sufficient evidence which shows he sought help for or was diagnosed with a thyroid disorder or any other condition at the time of his discharge.  Additionally, there is no evidence which shows the applicant's unsatisfactory performance was as a direct result of the medical condition he was later diagnosed with.  Therefore, this argument is not sufficient to support his request to upgrade his discharge.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical 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.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

4.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20110023113



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023113



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1