IN THE CASE OF:	 

		BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130000186


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 under other than honorable conditions to honorable.

2.  The applicant states he was given a discharge under other than honorable conditions because he missed mandatory meetings; however, he was in the hospital at the time receiving treatment for colon cancer.  He states his spouse contacted his unit and advised the unit of his medical condition at the time.

3.  The applicant submits the following documents in support of his request:

* The American Legion letters and statements
* St. Rita's Medical Center Summary Abstract Reports
* National Personnel Records Center Certification of Military Service
* DD Forms 4 (Enlistment Contract – Armed Forces of the United States)
* U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, Orders Number D-03-901165, dated 6 March 1984
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty)
* DA Forms 87 (Certificate of Training)
* DD Form 257MC (General Discharge Certificate) issued by the U.S. Marine Corps (USMC)
* third-party statements from former unit members
* numerous letters and statements of support from his spouse
* numerous medical forms and documents detailing some of the medical care he has received since 1983, the year he contends he suffered a heat stroke during annual training at Fort Campbell, KY
* incomplete transcript (pages 3, 4, and 17 missing) of a Department of Veterans Affairs (VA) decision review hearing on 10 June 2008
* the incomplete transcript (pages 1-9 missing) of a VA regional hearing on or about 27 March 2012

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.  On 15 October 1971, the applicant enlisted in the USMC.  On 2 June 1972, he was discharged under honorable conditions under the provisions of the Marine Corps Separation and Retirement Manual, paragraph 6016.1c, with separation program number 265 (Unsuitability, Character and Behavior Disorders).  He was issued a General Discharge Certificate.

3.  On 23 October 1974, he enlisted in the U.S. Army Reserve (USAR).  On 29 November 1974, he entered active duty at Fort Jackson, SC, for initial entry training.

4.  On 28 March 1975, he was honorably released from active duty and returned to the control of the USAR.

5.  On 15 April 1978, he completed the military training requirements necessary for award of military occupational specialty (MOS) 76Y (Unit Supply Specialist).  Based on a review of his available records, it is unclear if he was ever formally awarded MOS 76Y by proper authority.

6.  On 22 September 1980, he reenlisted in the USAR for a 3-year term.  His expiration of term of service date was established as 21 September 1983.

7.  On 7 March 1982, a board of officers convened at Headquarters, 83rd USAR Command (ARCOM) to consider the applicant's performance of duty and further retention in the USAR.  The board found him undesirable for further retention in his unit because of misconduct – unsatisfactory participation.  The board recommended his transfer to the Individual Ready Reserve (IRR) with his service tentatively characterized as under other than honorable conditions.

8.  On 14 April 1982, the Commander, 83rd ARCOM, approved the board's findings and recommendation.

9.  83rd ARCOM Orders 69-8, dated 14 April 1982, reduced him from the rank/grade of specialist five/E-5 to private/E-2 effective 14 April 1982.

10.  83rd ARCOM Orders 70-6, dated 15 April 1982, reassigned him from Company D, 983rd Engineer Battalion, to the IRR effective 15 April 1982 for unsatisfactory participation.  The authority for separation was Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details and Transfers), paragraph 2-23 (Transfer to the IRR of Unsatisfactory Participants).  His service was characterized as under other than honorable conditions.

11.  ARPERCEN Orders Number D-03-901165, dated 6 March 1984, discharged him from the USAR in the rank/grade of private/E-1 effective 6 March 1984 with his service characterized as under other than honorable conditions.  The authority for this separation was Army Regulation 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel).

12.  His military medical records are not available for review.

13.  His available military personnel records are void of documentation that shows:

* the circumstances that led to his separation for unsatisfactory participation
* he performed any USAR service after 15 April 1982, the date he was transferred to the IRR
* he attended annual training during Calendar Year 1983

14.  He provides:

	a.  third-party statements from former unit members who attest to the applicant's attendance at annual training in the summer of 1983.  In each statement, the writer contends the applicant suffered a heat stroke;

	b.  numerous medical forms and documents detailing some of the medical care he has received since 1983, the year he contends he suffered a heat stroke during annual training at Fort Campbell, KY.  None of these forms are dated in 1983, nor do they provide first-hand evidence of any medical conditions he may have suffered during his period of service in the USAR.  However, they do show he was initially diagnosed with colon cancer in September 1983; and

	c.  incomplete transcripts of two VA hearings conducted on 10 June 2008 and 27 March 2012.  These transcripts document the applicant's recollection of details related to his current medical condition, the cause of his various issues, and the degradation of his physical and mental abilities resulting from those various issues.

15.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of USAR enlisted Soldiers for a variety of reasons.

	a.  Chapter 7 provides for the separation of enlisted personnel for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, commission of a serious offense, and convictions by civil authorities.

	b.  Chapter 13 provides for the separation of Soldiers when it is determined the Soldier is an unsatisfactory participant.  The characterization of service normally assigned to members separated under this chapter will be under other than honorable conditions; however, the separation authority may authorize an honorable or general discharge if warranted based on the member's overall record of service.

	c.  Paragraph 2-9a provides that an honorable characterization is appropriate when the quality of the Soldier’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.

	d.  Paragraph 2-9b provides that a general under honorable conditions characterization is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh the positive aspects of the Soldier's military record.  When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.


16.  Army Regulation 140-10 prescribes the policies, criteria, and procedures for assignment, detail, removal, and transfer of members of the USAR.  Paragraph 2-23 provides that troop program unit (TPU) members whose participation has not been satisfactory may be transferred to the appropriate control group of the IRR to complete their statutory military service obligation or contractual obligation to preclude the loss of potential mobilization assets.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  The applicant contends he was discharged from the USAR under other than honorable conditions because he missed mandatory meetings.  He states he was in the hospital at the time receiving treatment for colon cancer.  He states his spouse contacted his unit and advised the unit of his medical condition at the time; thus, he should not have been deemed an unsatisfactory participant.

3.  The applicant's available records are void of the specific facts and circumstances surrounding his separation from the USAR.  However, the evidence shows he was transferred to the IRR as an unsatisfactory participant in 1982.

4.  He provides numerous medical documents that show he suffers from a number of medical ailments.  Included in this evidence are documents that show he was initially diagnosed with colon cancer in September 1983, approximately 17 months after he was transferred to the IRR.  His absence due to hospitalization cannot be considered a contributing factor to his separation from the USAR since he was no longer a member of a TPU at the time of his diagnosis, hospitalization, and subsequent treatment.

5.  The documents related to his separation board action and transfer to the IRR carry with them a presumption of regularity in the separation process.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and that his rights were protected throughout the separation process.

6.  His unsatisfactory participation clearly diminished the overall quality of his service below that meriting an honorable discharge or a general discharge under honorable conditions.  Therefore, absent evidence of an error or injustice in the discharge process, there is an insufficient evidentiary basis to support 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 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)                                         AR20090001630



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ABCMR Record of Proceedings (cont)                                         AR20130000186



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