IN THE CASE OF:
BOARD DATE: 18 February 2014
DOCKET NUMBER: AR20130010593
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 that his general discharge be upgraded to a fully honorable discharge.
2. The applicant states that he was hospitalized 8 months for a serious injury to his ankle that occurred during his service and he now lives on social security disability due to that injury.
3. The applicant provides no additional documents with 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. On 20 December 1971, the applicant enlisted in the Regular Army for a period of 3 years. He was transferred to Fort Dix, New Jersey to undergo basic training.
3. On 10 March 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 6 to 8 March 1972.
4. On 26 April 1972, NJP was imposed against the applicant for being AWOL from 27 March to 5 April 1972 and from 12 to 22 April 1972.
5. On 28 April 1972, the applicant tripped while running in Stratford, New Jersey and sustained injuries to his right tibia. The applicant was absent without authority and a line of duty investigation deemed his injury to be not in the line of duty not due to his own misconduct.
6. On 21 September 1972, the applicants commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 for unsuitability due to repeated AWOL, substandard behavior, and unwillingness to conform to military standards.
7. The applicant waived his rights and elected not to submit a statement in his own behalf.
8. On 31 October 1972, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.
9. Accordingly, on 10 November 1972, he was discharged under the provisions of Army Regulation 635-212, with a general discharge, for unsuitability. He had served 10 months and 2 days of active service and had 20 days of lost time due to being AWOL. He was also still in a trainee status.
10. There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
11. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, that when separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individuals entire record.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
3. The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when considering his repeated periods of AWOL and undistinguished record of service during a short period of time.
4. Additionally, his injury was not incurred in the line of duty as he was absent without authority when he injured himself.
5. Accordingly, there appears to be no basis to grant his request for an upgrade of his discharge.
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) AR20130010593
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ABCMR Record of Proceedings (cont) AR20130010593
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