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ARMY | BCMR | CY2014 | 20140018578
Original file (20140018578.txt) Auto-classification: Denied

		IN THE CASE OF:  	  

		BOARD DATE:  25 June 2015	  

		DOCKET NUMBER:  AR20140018578 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD) or a medical discharge under honorable conditions.

2.  The applicant states he injured his back at Fort Rucker and could not run.  He has attempted to get his medical records but has been told they are missing.

3.  The applicant provides no additional supporting documentation.

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 12 July 1971, completed training, and was awarded military occupational specialty 93H (Air Traffic Control Tower Operator).
3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 14 July 1972 for failing to go at the time prescribed to his appointed place of duty.

4.  On 25 September 1972, the applicant received orders to Oakland Army Base for overseas reassignment to Vietnam effective 5 November 1972.

5.  The applicant's Enlisted Efficiency Report, dated 5 October 1972, states that the applicant did not practice self-control or self-discipline expected of a Soldier of his grade.  He had a poor attitude toward military life and did not appear to have the willingness to be a controller.

6.  The applicant, while pending assignment to Vietnam, was absent without leave from 7 December 1972 through 28 January 1973.

7.  On 8 February 1973, the applicant submitted a request for discharge in lieu of trial by court-martial under Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10.  Other than the applicant's request memorandum, none of the separation processing documents are available for review.

8.  On 27 February 1973, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was given a UD Certificate and that he completed 1 year, 5 months, and 28 days of active service with 48 days of time lost. 

9.  The available records do not include the applicant's service medical records.  However, there is a separation medical examination in the file.  It is noted that the applicant had seasonal allergies and complained of occasional low back pain.  No history of a back injury was noted and no physical abnormalities were found.

10.  On 24 November 1980, the Army Discharge Review Board denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.  During this review the applicant contended that the reason for his misconduct was due to his wife's mental instability and inability to deal with his assignment to Vietnam.  No mention or consideration of any medical condition was raised during his personal appearance hearing.

11.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating.
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

	b.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD. 

	c.  A discharge under conditions other than honorable (UOTHC) is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the record does not contain any indication that he suffered an injury to his back while on active duty.  Further, the applicant is not shown to have been unfit for duty at the time of discharge; therefore, he is not shown to meet the requirements for consideration for a medical separation.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with his overall record.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  There is no documentation to support the applicant's contention that he had a back condition or any other medical problem at the time of his misconduct and no rationale to support the implied conclusion that those alleged circumstances would warrant 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)                                         AR20140018578



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ABCMR Record of Proceedings (cont)                                         AR20140018578



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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