BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140012200 


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 the following corrections of his DD Form 214 (Report of Separation from Active Duty) to show in:

* Item 9c (Authority and Reason) – medical reasons
* Item 9e (Character of Service) – honorable or general
* Item 17a (Secondary Specialty Number and Title) – 71S, Attaché Specialist

3.  The applicant states:

   a.  After a review of the available documents in his Army personnel file, there is sufficient evidence of an unjust and inequitable discharge in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and other referenced Army regulations.  His rights were not fully protected throughout the separation process.  His right to obtain a Medical Evaluation Board (MEB) referral was overlooked because the separation process overrode his medical issues.  Because of the missing documents, the Army Review Boards Agency couldn't render a decision.  According to the National Personnel Records Center (NPRC), those missing documents were never sent to them.  However, there is sufficient evidence in his personnel file to prove that he received an unjust and inequitable discharge.  

   b.  Out of the 4 months he spent in Korea, 1 month was on restricted duty.  There was no counseling or any clue about a board hearing.  He didn't know he was going to be discharged from the Army until 20 April 1974, the date of discharge.  His DD Form 214 shows no reduction in his rank/pay grade.  Their focus was only on the discharge.  

   c.  His mental status evaluation was conducted by a medical doctor.  After he was discharged from the hospital on 14 March 1974, he never saw or spoke to anyone at his duty station again nor was he informed or counseled by anyone regarding plans for his separation.  He thought they had moved him from his duty station to another unit because he was on restricted duty and could not perform his duties.  Perhaps they didn't want him around during the separation plans/proceedings.  If he deserved an under other than honorable conditions discharge, why would they bypass rehabilitation or counseling?  He was never reprimanded or counseled about his misconduct nor was he informed of any separation action against him.

   d.  He didn't know of a board hearing until he received his separation records from the NPRC on 28 September 2012.  The DA Form 268 (Report for Suspension of Favorable Personnel Actions) initiated on 9 April 1974 stated the reason for the suspension was "pending court-martial."  The convening date of the court-martial board would have begun after 9 April 1974 and before the decision was made on 16 April 1974.  Given this information, there wasn't enough time to serve a proper notice.

   e.  Army Regulation 635-200, chapter 2, states it’s the responsibility of the unit commander to ensure that all of his rights were protected.  He thought he had a good relationship with his commander.  There should be more emphasis on reviewing separation procedures before the discharge, especially in cases for less than honorable discharges.  This will ensure that the rights of the Soldier will be protected through the separation process.

   f.  A referral to an MEB should have been recommended while he was in the hospital or after his discharge from the hospital.  The medical doctor noted on his Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), dated 14 March 1974, four episodes of syncope (passing out), nosebleeds, and headaches.  The doctor then authorized a 30-day period of restricted duty on the DA Form 3349 (Medical Condition – Physical Profile Record).  

   g.  During his medical examination on 15 April 1974, the official was focused on his pending separation and his medical issues were ignored.  It seemed there was a rush to discharge him with an under other than honorable discharge.  This official indicated that he was qualified for discharge under Army 
Regulation 635-200.  On the DA Form 3622-R (Report of Mental Status Evaluation) the "Unsuitability" block was checked.  This indicated a medical reason for his discharge.  However, the board recommended the under other than honorable conditions discharge which also forfeited his right to receive benefits from the Department of Veterans Affairs after his discharge.  

   h.  When he arrived at his duty station in Korea on 16 December 1973 one of his assigned duties was as a 71S, which required a security clearance.  His job as an attaché specialist was to hand-deliver classified documents from his commander to other high-ranking officers all over the post.  It there was any misconduct, he would have lost his security clearance and his duty assignment as an attaché specialist.  

   i.  He is also seeking a personal appearance before the Board if there is a need for an appeal.   

3.  The applicant provides copies of the following:

* Time Line of Tour of Duty in Korea 
* DA Form 3286-5-R (Statements for Enlistment)
* Enlisted Army (EA) Form 230 (Enlisted Interview Sheet)
* DA Form 3349 
* SF 600
* SF 513 (Clinical Record – Consultation Sheet)
* two DA Forms 268
* DA Form 3622-R
* SF 88 (Report of Medical Examination)
* Two SFs 93 (Report of Medical History)
* Special Orders (SO) Number 106
* DD Form 214
* four letters from the Army Board for Correction of Military Records (ABCMR) and NPRC

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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant enlisted in the Regular Army on 30 June 1973.  He was awarded military occupational specialty 71B (clerk typist).  He was advanced to pay grade E-2 on 25 September 1973.  

3.  His records contain and he provided copies of the following:

   a.  A Time Line of Tour of Duty in Korea wherein he stated he served in Korea from 16 December 1973 through 20 April 1974.

   b.  A DA Form 3286-5-R wherein he acknowledged the Career Group Enlistment Option in connection with his enlistment for MOS 71S.

   c.  An SF 93, dated 19 April 1973, wherein he stated his health was good, he had coughed up blood, and he suffered from chronic or frequent colds, sinusitis, hay fever, and foot trouble. 

   d.  An EA Form 230 he completed and signed on 16 December 1973.

   e.  A DA Form 3349, dated 14 March 1974, which shows he was returned to duty after being diagnosed with recurrent nose bleeds and passing out recurrently.  The examining doctor indicated the conditions were temporary and were not expected to exceed 90 days.  Duty limitations were authorized for 30 days. 

   f.  SF 600 and SF 513, dated 14 March 1974, which show he received treatment for nosebleeds and headaches and a neurological workup was underway.  The SF 600 indicated he had a shaving profile.  The SF 600 form did not indicate his conditions were cause for him to undergo physical disability processing.  

   g.  Two DA Forms 268, dated 9 April 1974, which show him pending court-martial action.  The forms did not disclose the charges/offenses.

   h.  A DA Form 3622-R, dated 15 April 1974, which shows he underwent a mental status evaluation for unsuitability.  The examining doctor found no significant mental illness and that he met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).

   i.  SFs 88 and 93 which show he underwent a medical examination on 15 April 1974 for the purpose of separation and was found qualified for separation under Army Regulation 635-200.  On the SF 88, he did not indicate any present medical conditions.  On the SF 93, he indicated had experienced several medical conditions to include nosebleeds; frequent or severe headache; dizziness or fainting spells; eye trouble; ear, nose, and throat trouble; sinusitis; and hay fever.

   j.  SO Number 106, dated 16 April 1974, which assigned him to the transfer station for separation processing

4.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A Review of Discharge memorandum, dated 20 April 1974, which shows he was advised that he was being issued an undesirable discharge from the Army and advised of the process for applying to the Army Discharge Review Board (ADRB).  He acknowledged receipt of the memorandum on the same date.

   b.  A DD Form 214 which shows he was discharged in pay grade E-2 on 20 April 1974.  He was credited with completing 9 months and 21 days of active service.  He was also credited with 4 months and 6 days of foreign service in Korea. His DD Form 214 lists in:

* Item 9c – Army Regulation 635-200 (Personnel Separations, Enlisted Separations), paragraph 13-5a(1), separation program designator (SPD) 28B (Unfitness)
* Item 9e – Under Conditions Other Than Honorable
* Item 17a – "None"

5.  There is no evidence he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  He also provided copies of the following:

   a.  A letter, dated 24 June 2010, wherein the ABCMR, in response to his request for an upgrade of his discharge, advised him that an exhaustive search was undertaken to locate his military records which were necessary for the processing of his application.  His record was found; however, unfortunately, the necessary documents to render a fair and impartial decision were missing from his record.

   b.  Three letters from the NPRC, dated 28 September 2012, 22 October 2012, and 17 January 2013, wherein he was provided a copy of his official military personnel file, medical record, and separation document.  The 17 January 2013 letter advised him that they were referring his inquiry along with his military records to the U.S. Army Human Resources Command (HRC) which had jurisdiction over the matter and he could expect a response from HRC.
7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.

   a.  Paragraph 13-5a(1) provided for separation for unfitness, which included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

   b.  Paragraph 3-7a stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b stated a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The regulation stated:

* Item 9c -  would list the statutory and/or regulatory authority for separation plus the SPD 
* Item 9e -  would list honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, or dishonorable
* Item 17a - would list the MOS code, title, and date of award

10.  Army Regulation 15-185, paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.




DISCUSSION AND CONCLUSIONS:

1.  With regard to item 9e of his DD Form 214:

   a.  The applicant's record is void of the complete facts and circumstances surrounding his discharge.  However, his records show he was pending court-martial proceedings and his record contains a DD Form 214 which indicates he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for unfitness by reason of frequent incidents of a discreditable nature with civil or military authorities.

   b.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.

   c.  Without evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  It is also presumed he was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

2.  With regard to item 9c of this DD Form 214:

   a.  There is no evidence to support his contentions or that shows he had a disabling condition at the time that would have supported his processing for a medical discharge through medical channels.  As noted above, without evidence to the contrary, it is presumed he was properly discharged in accordance with pertinent regulations with due process.  

   b.  Therefore, he is not entitled to correction of item 9c of his DD Form 214 to show he was discharged for medical reasons or he was entitled to a medical disability discharge.

3.  With regard to item 17a of this DD Form 214, the evidence of record shows he was awarded MOS 71B and it appears he served in that MOS during his period of service.  There is no evidence of record and he provided none showing he was awarded and served in MOS 71S as a secondary MOS during his period of active duty.

4.  Therefore, this is insufficient evidence to support granting him 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)                                         AR20140012200





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ABCMR Record of Proceedings (cont)                                         AR20140012200



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