BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20120001023 


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 upgrade of his undesirable discharge.

2.  The applicant states he was informed that his discharge could be considered for upgrade.  Today he desperately needs it upgraded.  Since 1987 he has been 100 percent (%) disabled with both service and non-service related conditions.  He was shot six times and treated at an Air Force base in San Antonio, TX.  He sustained frostbite to both feet while on maneuvers in Germany.

3.  The applicant provides:

* his Undesirable Discharge Certificate
* General Court-Martial Order Number 76, issued by Headquarters,
1st Armored Division, dated 5 November 1976
* Field Communication Electronic Equipment Repair Course Diploma, dated 27 May 1975
* Certificate of Appreciation, National Safety Council Defensive Driving Campaign, dated 5 November 1975

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 January 1975.  He completed training and he was awarded military occupational specialty (MOS) 31B (field communication electronic equipment repairman).

3.  He was stationed in Germany where he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) in:

* September 1975, for stealing a 10-speed bicycle from a fellow Soldier
* January 1976, for being absent without leave (AWOL) for 1 day and failing to secure an official Government vehicle
* May 1976, for being AWOL for 1 day, and being disrespectful to a corporal and a captain

4.  Medical records show that on 24 October 1975 the applicant reported for sick- call complaining of cold feet.  He was diagnosed with a cold injury, prescribed warm soaks, and returned to duty.

5.  On 6 October 1976, contrary to his plea, he was found guilty by a general court-martial of disobeying a lawful order issued by a captain.  He was sentenced to 30 days confinement and reduction to pay grade E-1.

6.  The applicant entered a retraining program on 29 October 1976.  Counseling and progress notes indicate:

* at the intake interview he indicated he wanted to get a good discharge but did not want to return to duty
* on 2 November he was insulting and disrespectful to the dining facility staff
* on 3 November 1976, he threatened one of the dining facility staff
* his first weekly progress report recorded two satisfactory ratings and eleven unsatisfactory ratings, and the team leader recommended his separation from the service
* at a 5 November 1976 counseling session the applicant stated he wanted to return to duty but acted as if he didn't – the staff concluded he was "playing some kind of game"
* on 8 November 1976, he was 30 minutes late for duty and took
20 minutes for a 10 minute break
* on 10 November 1976, he started another argument with the dining facility staff
* that same day he was late for sick-call for the second time
* his second weekly progress rating recorded eight unsatisfactory and three satisfactory ratings, and the team leader again recommended his separation from the service
* on 11 November 1976, he was late for duty, displayed poor performance, left duty without permission and, when counseled, indicated he wanted out of the Army and didn't care what kind of discharge he received
* on 13 November 1976, he used disrespectful language toward and willfully disobeyed the order of a staff sergeant 

7.  On 15 November 1976, the applicant received NJP under the provisions of Article 15, UCMJ for being disrespect to a noncommissioned officer (NCO).

8.  The applicant's discharge packet is not available for review; however, his official military personnel file (OMPF) contains a DD form 214 (Report of Separation from Active Duty) that shows on 1 December 1976, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1) with a separation program designator (SPD) code of JKA for unfitness by reason of frequent involvement of a discreditable nature with military or civilian authorities.

9.  There is no indication the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

11.  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.

12.  Army Regulation 635-200, 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.

13.  Army Regulation 15-185 (ABCMR), 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's record is void of the specific facts and circumstances surrounding his discharge.  However, his record contains a DD Form 214 that indicates he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness by reason of frequent incidents of a discreditable nature with civil or military authorities.

2.  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.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  The undesirable discharge he was issued was certainly warranted by the applicant's previous misconduct and continued refusal to comply with the retraining requirements.  The discharge processing must be presumed to have be administratively correct.  Therefore, the type of discharge directed and the reasons appear to be appropriate considering all the available facts of the case.

4.  The ABCMR does not upgrade discharges based on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120001023



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ABCMR Record of Proceedings (cont)                                         AR20120001023



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