IN THE CASE OF:
BOARD DATE: 6 August 2015
DOCKET NUMBER: AR20140021177
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).
2. The applicant states when he attempted to volunteer for service in 1968 he was denied entry due to his asthma; however, when he was drafted in 1969 he was accepted despite still having asthma, back problems, and other medical conditions. These medical conditions caused him mental issues and he went home for help. He avers that he should never have been drafted.
3. The applicant provides copies of his DD Form 214 (Report of Transfer or Discharge), a 10 April 1968 Report of Medical Examination, and a 10 April 1968 Report of Medical History.
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. On the applicant's 10 April 1968 pre-induction medical examination, he reported both asthma and back pain. These conditions were considered and ruled out by the examining physician.
3. The applicant entered active duty on 6 February 1969. He completed basic training; however, he failed to complete advanced individual training and was never awarded a military occupational specialty.
4. On 28 March 1969, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for one day.
5. On 25 July 1969, a special court-martial found the applicant guilty of being AWOL for the periods 5 May 1969 through 10 June 1969 and 27 to 28 June 1969.
6. On 4 March 1970, a special court-martial found the applicant guilty of being AWOL for the period 13 August 1969 through 9 January 1970.
7. On 24 February 1971, a special court-martial found the applicant guilty of being AWOL for the periods 6 May 1970 through 4 November 1970 and
21 November 1970 through 9 January 1971.
8. The applicant's 25 February 1971 separation examination does not include any complaints of or findings of any medical conditions.
9. The only documentation related to the applicant's separation processing is the applicant's unit commander's 10 March 1971 recommendation that the applicant be discharged due to his misconduct.
10. The applicant was discharged on 1 April 1971 under the provisions of Army Regulation 635-212 with a UD. He had 6 months and 9 days of total active service with 589 days of lost time.
11. On 21 March 1984, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.
12. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
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. 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.
2. The applicant has not provided and the record does not contain any evidence that he was suffering from asthma or had back problems during his period of active duty or that, if he had these conditions, they were the cause of his repeated periods of AWOL.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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) AR20140021177
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ABCMR Record of Proceedings (cont) AR20140021177
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