BOARD DATE: 18 February 2014
DOCKET NUMBER: AR20130011527
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 undesirable discharge to a general discharge.
2. The applicant states he realizes he should have made this request earlier. He served in Korea along the demilitarized zone (DMZ) and he now suffers from diabetes type II.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records 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 Regular Army on 24 September 1971. He held military occupational specialty 11C (Infantry Indirect Fire Crewman)
3. His DA Form 20 (Enlisted Qualification Record) shows he served in Korea from March to August 1972. The highest grade he attained was E-2. He was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal (Korea), and the Marksman Marksmanship Qualification Badge with Rifle Bar.
4. The applicant's discharge processing documentation is not available for review. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was administratively discharged under conditions other than honorable on 20 October 1972 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. He had completed 10 months and 27 days of active duty service with 61 days of time lost. He was discharged in absentia.
5. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
6. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.
a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate was normally furnished to an individual who was discharged for the good of the service.
b. Paragraph 3-7b states 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.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-9 states the ABCMR begins 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 specific facts and circumstances surrounding his discharge are not available for review. However, his DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.
2. The applicant's service and his current health problems have been noted but they do not demonstrate an injustice in the discharge.
3. In the absence of evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations.
4. The applicant has not shown any error, injustice, or inequity for the relief he requests. Therefore, the applicant is not entitled to 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 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) AR20100027085
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ABCMR Record of Proceedings (cont) AR20130011527
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