IN THE CASE OF:
BOARD DATE: 8 October 2014
DOCKET NUMBER: AR20140006288
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 discharge be upgraded to a fully honorable discharge.
2. The applicant states, in effect, that he entered the Army as a healthy 18-year old eager to serve his country; however, during training he was subjected to physical and psychological abuse which has affected him since his discharge and for which he still seeks treatment.
3. The applicant provides a 3-page written statement explaining his application, a statement from his physician, and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 31 October 1972 for a period of 2 years. He completed his basic training at Fort Polk, LA and was transferred to Fort Bliss, TX to undergo his advanced individual training as an air defense artillery crewman.
3. On 20 March 1973, nonjudicial punishment (NJP) was imposed against him for his failure to go to his place of duty and for being disrespectful in language towards a superior noncommissioned officer by saying "it is none of your business where I live" and "no one tells me what to do."
4. On 2 May 1973, NJP was again imposed against him for his failure to go to his place of duty.
5. The facts and circumstances surrounding his discharge are not present in the available records; however, his records do contain a DD Form 214, which he signed, which shows he was discharged under other than honorable conditions on 1 June 1973, under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to apathy, defective attitude or inability to expend effort constructively. He served 7 months of total active service and was still in a trainee status.
6. There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
7. Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. An individual could be found unfit for various types of misconduct that included frequent incidents of a discreditable nature with military authorities, apathy, defective attitude and personality disorders. Although an honorable or general discharge could be issued, an undesirable discharge was normally considered appropriate.
8. Army Regulation 635-200, 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that his administrative discharge was accomplished in accordance with applicable regulations in effect at the time with no indication of any procedural errors that would tend to jeopardize his rights. Accordingly, the type of discharge and the reason was appropriate given the circumstances in this case.
2. His contentions have been noted by the Board; however, they are not supported by the evidence of record and they are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service during such a short period. He provides no evidence to show he was physically or psychologically abused. His service simply does not rise to the level of a fully honorable discharge.
3. Accordingly, there appears to be no basis to grant the applicants 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) AR20140006288
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ABCMR Record of Proceedings (cont) AR20140006288
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