IN THE CASE OF:	  

		BOARD DATE:	 21 June 2012 

		DOCKET NUMBER:  AR20120000909 


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 discharge to general.

2.  The applicant states he is not the same person now.  He paid a great price for his in-service behavior.  He has been unable to obtain Department of Veterans Affairs (VA) healthcare.  He suffers from a major back injury and must get around on a scooter or walk with a cane.  He requires major surgery.  He does receive Medicaid, but it is not great health care coverage.  He believes he deserves some recognition for the pain he has suffered.

3.  The applicant provides no documentary evidence to substantiate his request.

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 27 September 1976 for 3 years and training in military occupational specialty (MOS) 17K as a ground surveillance radar operator.  He completed training and was stationed at Fort Carson, Colorado.

3.  He received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for multiple offenses of being absent from his appointed place of duty, being absent without leave (AWOL), and for carrying a concealed handgun (once).

4.  The applicant's medical records are not contained in the available records. There is no evidence that he received a back injury.

5.  The applicant's discharge processing documents are not contained in the available records.  However, a duly-constituted DD Form 214 shows he was discharged on 6 November 1978 under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct, with an under other than honorable conditions discharge.  The DD Form 214 also shows he completed 2 years and 20 days of active service and he had 21 days of lost time.

6.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.
   
   b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

7.  The Table of Maximum Punishments in the Manual for Courts-Martial shows that the offense of carrying a concealed weapon is punishable by bad conduct discharge and up to a year in confinement.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2–9 (Burden of Proof) states, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has
the burden of proving an error or injustice by a preponderance of the evidence.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no evidence to support his application.

2.  The applicant's separation processing documents are not available for review.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 6 November 1978 under the provisions of chapter 14, Army Regulation 635-200, for a pattern of misconduct, with an under other than honorable conditions character of service. 

3.  In the absence of evidence to the contrary administrative regularity in the applicant's discharge processing is presumed.  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.  The applicant has provided no evidence that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.  

4.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20120000909



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000909



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1