IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140009180 


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 reconsideration of his earlier request for a medical discharge.  

2.  As a new issue, he requests an upgrade of his under honorable conditions (general) discharge. 

3.  The applicant states he was on leave during Christmas and he was involved in a car accident (he was a passenger).  The accident left him with a broken back.  He was admitted to Brown County Hospital in Georgetown, OH, and he was later transferred to Fort Knox, KY.  He wore a back brace until he was discharged.  He needs the upgrade so he may qualify for further veterans' benefits.   

4.  The applicant provides a Certification of Military Service. 

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-08883, on 2 February 1983. 

3.  With respect to the medical discharge: 

	a.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  

	b.  The staff of the ABCMR reviewed the applicant's current request for reconsideration and determined that his request for reconsideration was neither received within one year of the ABCMR's original decision nor contains any new evidence.  As a result, the applicant's request for reconsideration does not meet the criteria outlined above, and this portion of his request will not be discussed further in the Record of Proceedings.  The ABCMR will not consider any further requests for reconsideration of this matter.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction.

4.  The applicant's records show he enlisted in the Regular Army on 1 December 1972.  He was assigned to Fort Knox, KY, for completion of training.  

5.  On 29 January 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possessing marijuana.  

6.  On 7 February 1973, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order.  

7.  On 13 February 1973, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 20 February 1973.  

8.  On 20 February 1973, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL.  

9.  On 21 February 1973, he departed his unit in an AWOL status.  He returned to military control on 4 March 1973.  

10.  On 19 March 1973, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL.  

11.  On 19 March 1973, he underwent a command-directed mental status evaluation.  His commander described him as immature, unmotivated, undisciplined, lazy, unconcerned, and unable to adjust.  He does not take responsibility and failed to respond to counseling.  The Report of Mental Status Evaluation shows no mental illness and the applicant met retention standards.  He was psychiatrically cleared for administrative action by his chain of command. 

12.  On 20 March 1973, he underwent a medical examination.  The medical examiner found him medically qualified for separation and assigned him a PULHES of "1-1-1-1-1-1." 

13.  On 21 March 1973, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unsuitability.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  

14.  On 21 March 1973, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  He acknowledged that:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life




15.  On 26 March 1973, the immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 due to unsuitability. Specifically, the immediate commander cited the applicant's:

* inability to work constructively, immaturity, impulsiveness, irresponsibility, uncooperative attitude, and poor attitude
* failing to respond to intensive efforts to rehabilitate him; his attitude and actions indicated he was unsuitable for service

16.  On 30 March 1973, the intermediate commander recommended approval of the discharge action.  

17.  On 4 April 1973, the separation authority approved the applicant's separation by reason of unsuitability and ordered the applicant discharged and issued an under honorable conditions (general) characterization of service.  The applicant was discharged accordingly on 29 May 1973.

18.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an under honorable conditions (general) discharge.  He completed 5 months and 11 days of creditable active military service and he had 18 days of lost time. 

19.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

20.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general under honorable conditions or an honorable discharge was considered appropriate.

21.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records reveal a history of misconduct which includes four instances of NJP, two instances of AWOL, and multiple negative counseling for various infractions.  There is no evidence to show his misconduct was the result of any medical condition.  He was provided with multiple counseling and/or opportunities for rehabilitation but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him for unsuitability.

2.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  The quality of his service did not meet 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.  Therefore, he is not entitled to the 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)                                         AR20140009180



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ABCMR Record of Proceedings (cont)                                         AR20140009180



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