IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001571 


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.

2.  The applicant states that upon the birth of their son his wife was diagnosed with epilepsy.  She had no one to help her and he was told that it would take 
6 months for him to get a hardship discharge.  He also states that he was in Vietnam and he has just been told he has diabetes.  He believes Agent Orange may have caused his diabetes, because he has no family history of the disease.  He would like his discharge changed so that he may be evaluated for Agent Orange.   

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge). 

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 28 October 1968, completed the training requirements, and he was awarded military occupational specialty 91B (Medical Corpsman).  He was assigned to Vietnam on 6 July 1969.

3.  In Vietnam he served as a company medical aidman with 2nd Battalion, 505th Infantry, 82nd Airborne Division.  He was awarded the Combat Medical Badge on 11 September 1969, and he was honorably discharged on 
27 September 1969. 

4.  On 28 September 1969, he reenlisted.  He was granted reenlistment leave and transferred to Headquarters and Headquarters Company, 2nd Battalion, 82nd Airborne Division on 4 October 1969.  

5.  The applicant was absent without leave (AWOL) from 8 November 1969 to
31 March 1970 and from 10 to 16 May 1970.  On 25 June 1970, he was convicted of these offenses by a special court-martial (SPCM) and sentenced to reduction to pay grade E-1, a forfeiture of $30 pay for 4 months, and confinement for 3 months (suspended for 6 months).

6.  He was then AWOL from 12 July 1970 to 4 February 1971 and he was convicted by an SPCM on 4 March 1971 for this offense.  He was sentenced to serve in confinement at hard labor for 3 months and a forfeiture of $50 pay for
3 months.  While serving his sentence he was considered a non-effective prisoner.

7.  Upon reassignment he failed to report to his new duty station and he was dropped from Army rolls on 15 July 1971.

8.  The applicant's separation processing documents are not in the available records.  On 21 September 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge.  He had completed 6 months and 12 days of creditable service and he had 522 days of lost time during the period under review. 

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

	a.  Chapter 10 of the version then in effect provided that a member who committed an offense or offenses for which the authorized punishment included a 


punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

	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, 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.

10.  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 contentions.

2.  The applicant's separation processing documents are not available for review.  His DD Form 214 shows he was discharged on 21 September 1971 under the provisions of Army Regulation 635-200, chapter 10.  He received an under other than honorable conditions discharge for the good of the service in lieu of trial by court-martial.  During this period of enlistment he accumulated 522 days of lost time and only completed 6 months and 12 days of active service with no significant achievements.

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.  Furthermore, the applicant’s discharge accurately reflects his overall record of service during his last enlistment.  

4.  The applicant's eligibility for Department of Veteran Affairs (VA) benefits rests with that organization.  This Board does not grant relief solely for the purpose of making an individual eligible for VA benefits.

5.  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)                                         AR20120001571



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ABCMR Record of Proceedings (cont)                                         AR20120001571



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