IN THE CASE OF:
BOARD DATE: 10 October 2013
DOCKET NUMBER: AR20130003866
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. He states he has been diagnosed with schizophrenia and he believes this medical condition affected his military service. He is now in need of Department of Veterans Affairs (VA) health care. His type of discharge bars him from eligibility for VA benefits.
3. He provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), a self-authored statement, and three letters of support.
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 born on 14 February 1954 and he enlisted in the Regular Army on 20 May 1971 at the age of 17. At the completion of basic and advanced individual training, he was awarded military occupational specialty (MOS) 35K (Avionics Mechanic). He later completed basic airborne training.
3. His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on two separate occasions, for being absent without leave (AWOL) from 6 to 14 November 1972 and for participating in a breach of peace by wrongfully engaging in a fist fight.
4. His record also reveals a disciplinary history that includes a conviction by special court-martial for failing to report to PT [physical training] formation (two specifications), being AWOL from 22 November to 9 December 1972, and breaking restriction (three specifications).
5. He underwent a separation physical examination on 23 March 1973. The examining physician recommended he be examined by an Ear, Nose and Throat specialist, and he was qualified for separation with a physical profile of 111311.
6. His discharge packet is not available. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 4 April 1973 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), for unfitness for frequent incidents of a discreditable nature with military authorities. He was issued a discharge under other than honorable conditions (undesirable) and had 48 days of lost time.
7. He provided a self-authored statement in which he stated:
a. he was young, foolish, and very stupid for going AWOL while he was in the Army. He was very wrong in doing so. He wants to clear up his name and record.
b. he suffered severe hearing loss in both ears while he was in the service which has become worse. An upgrade of his discharge would allow him to get VA benefits so he can receive proper medical treatment.
c. he was assigned to the 82nd Airborne Division in Fort Bragg, NC. He worked in MOS 35K in which he performed very well in this MOS.
d. if he hadn't passed up orders to go to Frankfurt, Germany he probably would have not gone AWOL. His service spanned 22 months during the ongoing war of Vietnam.
8. He also provided three letters of support from his friends and brother who stated he had difficulty keeping a job because of his hearing loss and needs an upgrade so he can receive treatment and assistance from the VA.
9. His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.
11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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.
12. Army Regulation 635-200, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's service record is void of evidence which shows he was diagnosed with schizophrenia during his tenure on active duty.
2. The evidence of record shows the applicant was 18 years of age at the time of his offenses. However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.
3. The fact that the applicant is currently experiencing medical problems is unfortunate. However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.
4. In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.
5. His service record shows he received two Article 15s, one conviction by a special court-martial, and a record of 48 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general under honorable conditions discharge.
6. The evidence of record does not indicate the actions taken in this case were in error or unjust. Therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to honorable or general under honorable conditions.
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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