BOARD DATE: 17 July 2014
DOCKET NUMBER: AR20130017459
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 discharge be changed to a medical disability or retirement and he be allowed to use the Department of Veterans Affairs medical services.
2. The applicant states his discharge was unjust because he has a very low intelligence and had to have help to get into the military. He waived his rights to a discharge because they were not explained to him.
3. The applicant provides no additional supporting documentation.
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's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from limited reconstructed personnel records.
3. The available documentation shows the applicant enlisted in the Regular Army on 4 March 1965. He was absent without leave (AWOL) on nine occasions; 19 June 1967, 29 - 31 August 1967, 6 September 1967,
24 September 1967, 16-18 October 1967.
4. On 28 May 1969, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness with an undesirable discharge (UD). He completed
2 years, 9 months, and 17 days of creditable service with 162 days of time lost.
5. The applicant was issued a Clemency Discharge under the Presidential Proclamation Number 4313. This discharge reinstated his civil rights; however, neither his reason for separation nor his characterization of service were changed.
6. On 15 October 1980, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge or upgrade his characterization of service.
7. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.
8. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability and unfitness and provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
9. Army Regulation 635-40, paragraph 3-2a(5)b(1) provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
10. Army Regulation 15-185 sets forth policy and procedures followed by the Board. The Board 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 has not provided and the record does not contain any evidence that the applicant was suffering from any physical disability incurred or aggravated in service.
2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The type and character of the discharge appears to be commensurate with his overall record. Therefore, there is no basis for granting the applicant's 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.
ABCMR Record of Proceedings (cont) AR20130017459
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ABCMR Record of Proceedings (cont) AR20130017459
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