BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140004994 


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 general under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states he was discharged due to no fault of his own.  He had a service-connected medical physical profile.  Based on the physical limitations of his profile, he was advised to separate from service.  He subsequently was granted service-connected disability from the Department of Veterans Affairs (VA).

3.  The applicant provides:

* DA Form 3349 (Medical Condition – Physical Profile Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter from the VA

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 complete military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  This case is being considered using the documents provided by the applicant which include a duly-constituted DD Form 214. 

3.  The applicant enlisted in the Regular Army on 8 December 1970.

4.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 which shows he was discharged as a trainee on 24 September 1971, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), for unsuitability – apathy, defective attitudes and inability to expend effort constructively.

5.  This form also shows he had lost time for the periods 11 March to 15 June and 16 June to 29 June 1971, and he received a character of service of under honorable conditions.  He completed 6 months and 26 days of creditable active service.

6.  The applicant provides:

   a.  DA Form 3349, issued by the Commanding Officer, U.S. Walson Army Hospital, Fort Dix, NJ, dated 11 February 1971, which shows he received a permanent physical profile – P3 for chondromalacia in both knees.  The applicant was determined to be medically qualified for duty with permanent limitations based on a medical examination and a review of his health record on
11 February 1971.  The form indicates he was limited to no crawling, stooping, running, jumping, prolonged standing or marching and he was returned to his unit for duty; and   

   b.  a letter from the VA, dated 9 August 1972, that shows he was awarded monthly benefits in the amount of $25.00 beginning on 25 September 1971.

7.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its
15-year statute of limitations.
8.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively).  Members separating under this provision of the regulation could receive either an honorable or general discharge.

9.   Army Regulation 635-200 (Personnel Separations – 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.

10.  The presumption of administrative regularity in the conduct of governmental affairs can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 (ABCMR) which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his under honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant contends that based on the physical limitations of his profile he was advised to separate from service; however, he provides insufficient evidence and the lack of military records available for review in this case is insufficient to overcome the presumption of regularity. 

3.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 24 September 1971, under the provisions of Army Regulation 
635-212 by reason of unsuitability.  This form further shows the applicant had lost time for the periods 11 March to 15 June and 16 June to 29 June 1971. 

4.  Notwithstanding his contentions and in the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
There is insufficient evidence in the available records and the applicant has not provided sufficient evidence to show the reason for his discharge or the characterization of his service is anything other than proper and equitable.

5.  Therefore, it appears his overall service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is insufficient evidence to support his argument 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)                                         AR20140004994





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ABCMR Record of Proceedings (cont)                                         AR20140004994



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