BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120006092 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that while he was in training an officer continually told him that "he was going to be his slave."  He hit the officer and was discharged under other than honorable conditions.  He adds that he has a disability and post-traumatic stress disorder, which he believes contributed to his mistake.  An upgrade of his discharge will help him with his eligibility for veterans' benefits.

3.  The applicant provides a copy of the reverse side of a Standard Form (SF) 93 (Report of Medical History) and his DD Form 214 (Armed Forces of the United States 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 (RA) on 7 January 1971 for a period of 3 years.  On 15 January 1971, he extended his 3-year enlistment for a period of 12 months.  He served in Vietnam from 7 June 1971 through 22 April 1972 as a switchboard operator.  He was reassigned to Fort Bragg, NC on          7 June 1972.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three occasions for 

* failure to report at the time prescribed to his appointed place of duty on:

* 26 December 1971
* 25 March 1972

* absenting himself from his place of duty from 19 June to 7 July 1972

4.  A DA Form 19-32 (Military Police Report), dated 27 April 1973, shows the applicant was absent without leave from 21 August 1972 to 26 April 1973.

5.  A Report of Medical History, completed by the applicant for the purpose of his separation physical examination on 2 May 1973, shows that in response to the question, "Have you ever been a patient in any type of hospital?" the applicant responded, "I was a patient in Vietnam, sickness, disease unknown, in 1972."

6.  An SF 88 (Report of Medical Examination), completed on 2 May 1973, shows in item 74 (Summary of Defects and Diagnoses) the examining physician noted that the applicant had defective vision.  He found the applicant qualified for separation.

7.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) or a copy of his separation packet.

8.  The applicant was reduced to private (E-1) on 15 May 1973.

9.  Headquarters, III Corps, Fort Hood, Texas, Special Orders Number 102, dated 17 May 1973, discharged the applicant from the RA effective 18 May 1973 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10 (for the good of the service - in lieu of trial by court-martial) with issuance of an under other than honorable conditions discharge.


10.  The applicant's DD Form 214 shows he was discharged on 18 May 1973 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with service characterized as under conditions other than honorable.

   a.  He completed 1 year, 7 months, and 19 days of active service this period.

   b.  He had 266 days lost from 19 June through 6 July 1972 and from
21 August 1972 through 25 April 1973.

11.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

  	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

	b.  Chapter 3, 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.  Chapter 3, 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) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that 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 contention that his under other than honorable conditions discharge should be upgraded because he had a disability and he was verbally abused by an officer was carefully considered.

   a.  There is no evidence of record, and the applicant provides insufficient evidence, to support his contention that he had a disability during the period of service under review.  In fact, the applicant's separation physical examination report shows the only diagnosis noted by the examining physician was that the applicant had defective vision.
   
   b.  Notwithstanding the applicant's claim, he provides insufficient evidence to support his contention that an officer verbally abused him.

     c.  His record of misconduct occurred in two different assignments.

2.  The evidence of record shows the applicant elected to request discharge in lieu of being court-martialed.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge and narrative reason directed appear to have been, and still are, appropriate.

4.  The applicant had 266 days (i.e., almost 9 months) of time lost and he completed less than 20 months of his 4-year enlistment obligation.

5.  Thus, in view of the foregoing, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' 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 veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20120006092



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ABCMR Record of Proceedings (cont)                                         AR20120006092



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