IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120010322 


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 under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge.

2.  He states:

	a.  he enlisted in the Army under the pre-enlistment (Delayed Entry Program (DEP)) before he graduated from high school.

	b.  his enlistment contract indicated he would be an Airborne Medic in military occupational specialty (MOS) 91B (Medical Specialist) and he did everything he was instructed concerning his enlistment.  

	c.  he completed basic training at Fort Leonard Wood, MO, advanced individual training (AIT) at Fort Sam Houston, TX for medic training, and he went to Fort Benning, GA for airborne training.  

	d.  he completed all of his requirements with high marks.  He went through ground and jump week at Fort Benning, GA.  At the end of jump week, he was told he had sickle cell traits and it would affect him if he went up at a high   altitude without oxygen.  He was then stationed at the hospital at Fort Benning, GA. 



	e.  his enlistment contract indicated he was going to be stationed in Hawaii and attached to the 24th Infantry (he probably meant 25th Infantry Division).  When he was told this was not going to happen, he lost all hope and respect for peoples' word.  

	f.  he has made changes in his life and things are getting better, but he needs help.  He has no family or anyone who will deal with him.  By getting his discharge upgraded, it would help him to continue in a positive direction.  

3.  He provides a letter from the Volunteers of America, a letter from the Army Review Boards Agency, three character references, and two Certificates of Completion.

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 U.S. Army Reserve DEP on 10 March 1976 and he enlisted in the Regular Army on 23 June 1976 for a period of four years.  His enlistment contract indicates he enlisted for training in MOS 91B and airborne training.  

3.  During enlistment processing, he signed a DA Form 3286-4-R (Statements for Enlistment) which indicated he would be assigned to the 25th Infantry Division upon completion of training in MOS 91B.  This document indicated should he fail to qualify for airborne training subsequent to his enlistment or fail to retain these qualifications, he would not be offered another assignment choice, but would be reassigned in accordance with the needs of the Army.  One of the specific causes listed for disqualification for airborne training was the existence of a medical disqualification.  


4.  His service record contains three DA Forms 3349 (Medical Condition- Physical Profile Record) which indicate he was placed on temporary profiles of 113111 on 7 January, 14 January, and 3 February 1977 for sickle cell anemia.  He was given assignment limitations of no strenuous physical activities, no crawling, stooping, running, jumping, marching or standing for longer than 15 minutes.

5.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on four occasions for the following offenses:

* failing to obey a lawful order (FOLO) on 4 July 1976 while in basic combat training
* wrongfully possessing 1 gram, more or less, of marijuana on 29 August 1976 while in AIT
* disobeying a lawful order from his superior noncommissioned officer (NCO) on 9 February 1977
* failing to go at the time prescribed to his appointed place of duty on 7 and 11 February 1977
* FOLO on 14 June 1977
* unlawfully striking a private/E-1 on the chest with his fist on 15 June 1977

6.  On 27 April 1977, he was convicted by a special court-martial of being absent without leave (AWOL) from 2 to 27 March 1977 and for being disrespectful in language toward his superior NCO.

7.  On an unknown date, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  

8.  On 22 June 1977, he was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of Army Regulation 635-200 and its effect.  He was also advised of the rights available to him and the effect of any action taken by him in waiving his rights.

9.  He waived consideration of his case by a board of officers, waived a personal appearance, and declined to submit statements in his own behalf.  



10.  On 1 July 1977, the separation authority waived rehabilitation requirements, approved the recommendation for separation, and directed the issuance of a UOTHC Discharge Certificate.

11.  He was discharged on 7 July 1977 with a UOTHC discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 10 months of total active service with 75 days of lost time.

12.  He provided the following documents:

	a.  On 9 January 2012, he received a letter from the Departure Notice from the Volunteers of America, which indicates he completed the Transitional Recovery Program on 9 January 2012.

	b.  three character references from friends who attest to his excellent work ethics and describe him as being a compassionate, hardworking, respectful, caring, trustworthy, and reliable individual.  

	c. two Certificates of Completion, dated 9 January and 10 February 2012, which indicate he completed the Veteran's Transitional Recovery Program and the 90-Day Outpatient S.T.E.P. Recovery Program.

13.  On 22 November 1985, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  

   a.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

   b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record reveals he enlisted in the service for training in MOS 91B and for airborne training.  However, his service record is void of evidence which shows he completed airborne training.  

2.  His enlistment contract shows he would be assigned to the 25th Infantry Division in Hawaii upon completion of training in MOS 91B.  However, it clearly states that if failed to qualify for airborne training subsequent to his enlistment or fail to retain these qualifications, he would not be offered another assignment choice, but would be reassigned in accordance with the needs of the Army.  

3.  Since he did not meet the medical qualifications for airborne training due to his sickle cell, he was assigned to a unit at Fort Benning, GA instead of being reassigned to the 25th Infantry Division in Hawaii.  

4.  His statements regarding his personal problems are acknowledged.  However, his personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

5.  His administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-5a(1) were conducted in accordance with law and regulations applicable with no indication of procedural errors which would tend to jeopardize his rights.  

6.  His service record included four Article 15s and conviction by a special 
court-martial.  His misconduct started well before he began airborne training.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge.

7.  The character references provided by the applicant were also acknowledged.  However, these statements alone are not a basis for upgrading his discharge.

8.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for a general or honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.

9.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, 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)                                         AR20120010322





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ABCMR Record of Proceedings (cont)                                         AR20120010322



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