IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140012734 


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 for medical reasons and he was told at the time of his discharge that after six months it could be upgraded.  His medical discharge was due to asthma.  

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).  

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 records show he underwent an enlistment physical at the Armed Forces Examining and Entrance Station on 23 July 1973 and was qualified for enlistment.  The medical examiner noted the applicant had defective color vision.

3.  The applicant enlisted in the Regular Army on 24 July 1973 and was subsequently assigned to Fort Leonard Wood, MO for basic combat training.  

4.  On 31 July 1973, he was given a temporary 30-day profile for asthma.  The profiling officer stated the applicant was relieved from all basic combat training and held at Fort Leonard Wood pending medical board action.  

5.  His DA Form 20 (Enlisted Qualification Record) shows he was in civil confinement from 7 to 12 March 1974 and military confinement on 23 April 1974.

6.  On 18 April 1974, he was convicted by a special court-martial of being absent without leave (AWOL) from 16 September 1973 to 8 January 1974 and from 9 January to 7 March 1974.  He was sentenced to perform hard labor without confinement for three months and a forfeiture of $200.00 pay for six months.

7.  On 16 May 1974, a Medical Evaluation Board (MEB) convened at U.S. Ireland Army Hospital, Fort Knox, KY.  After consideration of the clinical records, laboratory findings, and medical examination, the MEB found the applicant was medically unfit due bronchial asthma.  The MEB recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-9 and chapter 2 of Army Regulation 40-501 (Standards of Medical Fitness).  The applicant agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

8.  Separate from the MEB decision, his complete discharge packet is not contained in his records that directed a general, under honorable conditions discharge.  However, his DD Form 214 shows he was discharged with a general, under honorable conditions and issued a General Discharge Certificate.   

9.  The applicant was discharged on 7 June 1974 under the provisions of Army Regulation 635-200, paragraph 5-9 by reason of not meeting medical fitness standards at time of enlistment.  He completed 4 months and 16 days of active military service with 179 days of lost time.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200, paragraph 5-9, of the version in effect at the time, stated individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment would be discharged when a medical board established that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty or active duty for training and which would have permanently disqualified him for entry into the military service had it been detected at that time.  Separation would be accomplished within 72 hours following approval by the discharge authority.  Authority for discharge (paragraph 5-9, Army Regulation 635-200) and SPN 375 will be included in directives or orders directing the individual to report to the appropriate transfer activity.  

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of 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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 24 July 1973.  While he was still in basic combat training at Fort Leonard Wood, an MEB found he was medically unfit due to bronchial asthma.  The applicant's medical reason for discharge under the provisions of Army Regulation 635-200, paragraph 5-9 by reason of not meeting medical fitness standards at time of enlistment is available for review. 

2.  The applicant's service record shows he was convicted by a special court-martial for two specifications of AWOL and a record of 179 days of lost time.  Although the applicant's separation packet to support his general, under honorable conditions discharge was not available for the Board's review, it is presumed that the Army's administrative processing during his separation is correct.  
3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.  It appears the applicant's chain of command determined his overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

4.  He has failed to show through the evidence submitted or the evidence of record that the type of discharge he received was in error or unjust.  Therefore, there is no basis for changing his discharge to fully honorable.

5.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told that his discharge would be automatically upgraded following the passage of time.  The U.S. Army does not have nor has it ever had a policy to automatically upgrade upgrades.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

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)                                         AR20140012734



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ABCMR Record of Proceedings (cont)                                         AR20140012734



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