BOARD DATE:  16 September 2014

		DOCKET NUMBER:  AR20140002741 


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, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he was sick with scarlet fever and he still suffers from dizzy spells.
 
3.  The applicant provides copies of his:

* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* Standard Form (SF) 601 (Immunization Record) 3 April to 4 May 1973
* DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 10 August 1973 (first page only)
* DA Form 20 (Enlisted Qualification Record), which was last reviewed on 12 October 1973
* SF 88 (Report of Medical Examination), dated 17 August 1974
* SF 93 (Report of Medical History), dated 17 August 1974
* SF 88, dated 15 January 1975
* SF 93, dated 15 January 1975
* 1st Endorsement, Subject:  Discharge of Personnel for Unfitness, dated 20 January 1975
* DA Form 2-1 (Personnel Qualification Record - Part II)
* DD Form 214 (Report of Separation from Active Duty)
* National Personnel Records Center letter, dated 21 October 2013


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 enlisted in the Regular Army on 19 April 1973.  He held military occupational specialty (MOS) 71B (Clerk Typist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  He served in Panama from 11 October 1973 through 13 October 1974.

3.  The available records show he:

	a.  accepted nonjudicial punishment (NJP) under the provisions of Article     15 of the Uniform Code of Military Justice UCMJ), on 10 August 1973 for being absent without leave (AWOL) during the period 3 through 10 August 1973; and

	b.  was convicted by a special court-martial on 25 October 1974, in accordance with his pleas, of three specifications of AWOL and one specification of unlawfully striking another Soldier.

4.  Correctional Progress Notes, dated 16 January 1975, show, "the results of his EEG and Brain Scan proved that there was no organic dysfunction apparent."
The applicant was responsible for his own behavior.  He appeared to be rather dull and slow in responding, and had given up on the Army.  His capabilities were viewed as very marginal in respect to making a successful Soldier, but if he was willing to put forth the effort, he could make it in the Army.  He was cleared for administrative action at the commander's discretion.

5.  On 20 January 1975, his commander initiated his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5, by reason of unfitness due to frequent incidents of discreditable nature.  His commander indicated he had accepted NJP on one occasion and had been convicted by a court-martial.  He had also been counseled on numerous occasions. 
6.  He consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He waived consideration of his case by and personal appearance before an administrative separation board. He also elected not to make any statement in his own behalf.

7.  An SF 93, dated 15 January 1975, contains notations that he had scarlet fever in April 1974 and experienced dizzy spells in Panama.  An SF 88, dated           15 January 1975, shows he was medically cleared for separation.

8.  His battalion commander recommended approval of his discharge action on 22 January 1975.  The separation authority approved his discharge and directed the issuance of an Undesirable Discharge Certificate.  On 29 January 1975, he was discharged accordingly.  His DD Form 214 shows he completed 
1 year, 7 months and 22 days of total active service with 49 days of lost time.

9.  On 12 April 1976, the Army Discharge Review Board denied his request for a change in his discharge.  

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	a.  Paragraph 3-7a states 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.

	b.  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 contends, in effect, that his UOTHC discharge should be upgraded because he was sick with scarlet fever and he still suffers from dizzy spells.
2.  The applicant was medically cleared for separation.  There is no evidence in the available records and the applicant has not provided sufficient evidence that shows he was not medically qualified for separation.  In addition, his misconduct started in August 1973, prior to his April 1974 bout with scarlet fever.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he 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)                                         AR20100009951



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