BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120003928 


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 his undesirable discharge be upgraded.

2.  The applicant states the characterization of his discharge was unjust because of the fact that his pre-existing medical conditions should have prevented his induction and they prevented him from performing to expectations and led to issues surrounding his eventual discharge.  He goes on to state that he performed to the best of his abilities and contends that had a proper medical screening been conducted, he would not have been put into the position of receiving a bad discharge.  He continues by stating he had spinal meningitis as a child and was disabled with back and leg conditions.  He further states he reported to Kansas City for induction and despite his medical disabilities he was still inducted.  He also states the demands were too much for him and he reported for sick call on a daily basis and eventually went absent without leave (AWOL) because he did not know what to do.  However, he turned himself in at Fort Riley, Kansas and served in an armor unit for a couple of weeks before being returned to Fort Leonard Wood, Missouri for discharge.  

3.  The applicant provides seven third-party statements, four of which indicate his medical condition and three which attest to his character. 

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’s official records show that he volunteered for induction at Kansas City, Missouri on 15 March 1962.  At the time of his induction he underwent a medical/physical examination and indicated no medical issues other than having had diphtheria.  He indicated that his avocations and sports were running track and playing pool and that his civilian occupation was that of a farmer and equipment operator.  He was transferred to Fort Leonard Wood, Missouri to undergo his basic training.  He went AWOL from 22 April to 26 April 1962.

3.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Veterans Administration (VA) in St. Louis, Missouri on 19 April 1971.

4.  On 20 June 1962, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-206 for fraudulent entry and his service was voided.

5.  His records show that on 19 December 1962 his civilian attorney requested information from his official records to be used to defend him on a felony charge in Arizona.  His attorney subsequently cancelled the request because the applicant was sentenced on 3 January 1963.

6.  There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  Army Regulation 635-206, in effect at the time, set forth the basic authority for separation of personnel for misconduct.  Section V of the regulation provided, in pertinent part, that individuals who concealed information that would serve as a disqualification at the time of enlistment were subject to be discharged.  Categories that were included in this regulation included fraudulent entry, conviction by civil court, and absence without leave and desertion.  An undesirable discharge was normally considered appropriate.
8.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7 states 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.

9.  Army Regulation 635-200, paragraph 3-7b states 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge was administratively correct and in conformance with applicable regulations, with no indication of any violations of any of his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the reasons for his discharge.  Therefore, given the available circumstances in this case and his overall undistinguished record of service, his discharge appropriately characterizes the period of service in question.

4.  Accordingly, there appears to be no basis to grant his request for an up[grade of his 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)                                         AR20120003928





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ABCMR Record of Proceedings (cont)                                         AR20120003928



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