IN THE CASE OF:
BOARD DATE: 8 January 2013
DOCKET NUMBER: AR20120011951
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 discharge to an under honorable conditions (general) discharge.
2. The applicant states he was discharged in 1969. He attempted to reenter military service in 1980, but he was denied reentry based on a medical condition.
3. The applicant provides no additional documentary evidence in support of his application.
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 was inducted on 12 February 1968 for a period of 24 months. He completed basic training. He did not complete advanced individual training.
3. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two occasions for:
* being absent without leave (AWOL) from 3 to 6 May 1968
* breaking restriction on 18 May 1968
4. Special Court-Martial (SPCM) Order Number 102, issued by Headquarters, U.S. Army Combat Surveillance and Electronic Warfare School/Training Center, Fort Huachuca, AZ, dated 8 October 1968, shows the applicant was tried at a special court-martial in September 1968.
a. He pled guilty to and was found guilty of:
* being AWOL from 29 May to 5 June 1968
* being AWOL from 28 June to 28 July 1968
b. His sentence was adjudged on 27 September 1968. It provided for the forfeiture of $73.00 per month for 3 months and confinement at hard labor for 3 months. The sentence was approved on 8 October 1968.
5. SPCM Order Number 1592, issued by Headquarters, Special Processing Detachment, Fort Riley, KS, dated 27 June 1969, shows the applicant was tried at a special court-martial in June 1969.
a. He pled guilty to and was found guilty of being AWOL from 10 January to 30 April 1969.
b. His sentence was adjudged on 26 June 1969. It provided for the forfeiture of $73.00 per month for 6 months and confinement at hard labor for 6 months. The sentence was approved on 27 June 1969.
6. SPCM Order Number 1733, issued by Headquarters, Special Processing Detachment, Fort Riley, KS, dated 18 July 1969, shows the unexecuted portion of the approved sentence of forfeiture of $73.00 per month for 6 months and confinement at hard labor for 6 months, adjudged on 26 June 1969, was remitted by the SPCM convening authority effective the date the applicant was discharged from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).
7. A Certificate of Psychiatric Evaluation shows the applicant was evaluated by a psychiatrist at the Mental Hygiene Consultation Service, Irwin Army Hospital, Fort Riley, KS, on 30 July 1969.
a. It shows "Diagnosis: 3215, immature personality, chronic, manifested by poor judgment, impulsive behavior, and fixated in the oral phase."
b. The psychiatrist determined the applicant was mentally responsible; able to distinguish right from wrong and to adhere to the right; and mentally capable to understand and participate in board proceedings. He noted that there were no physical or mental defects sufficient to warrant disposition of the applicant through medical channels under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).
c. The psychiatrist strongly recommended (doctor's emphasis) the applicant be administratively separated from military service under the provisions of Army Regulation 635-212.
8. A review of the applicant's records failed to reveal a copy of his separation packet.
9. Headquarters, Fort Riley, KS, Special Orders Number 171, dated 19 August 1969, discharged the applicant on 22 August 1969, under the provisions of Army Regulation 635-212 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).
10. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-212, Separation Program Number 28B (Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities), and his service was characterized as under conditions other than honorable. He completed 7 months and 6 days of total active service with 339 days of time lost.
11. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.
12. Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities. This Army regulation provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.
13. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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.
14. 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 contends his discharge should be upgraded because he tried to reenter military service, but he was denied reentry due to a medical condition.
2. Records show that prior to the applicant's separation from the Army, a psychiatrist determined there were no physical or mental defects to warrant disposition of the applicant through medical channels. Moreover, the doctor strongly recommended the applicant be administratively separated from military service under the provisions of Army Regulation 635-212.
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. The applicant has not provided any evidence sufficient to support upgrading his discharge. Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge directed appears to have been, and still is, appropriate.
4. The evidence of record shows the applicant:
* received NJP on at least two occasions
* was convicted at two special courts-martial
* had a total of 339 days of time lost
* completed only about 7 months of his 2-year service obligation
5. The applicant has not provided any evidence sufficient to support upgrading his discharge.
6. In view of all of the foregoing, there is no basis for granting the 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.
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