IN THE CASE OF: BOARD DATE: 20 November 2012 DOCKET NUMBER: AR20120007031 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 upgrade of his under other than honorable conditions discharge from the U.S. Army Reserve (USAR) to honorable due to physical disability. 2. The applicant states he had a heat stroke while on annual training. Within a very short time he got colon cancer. He underwent radiation treatment before and after his surgery. His wife kept in contact with his Reserve unit. Unit personnel thanked her for the updates and requested she continue to keep the unit informed. In 2002, several doctors told him he would not be in his current medical condition had it not been for the heat stroke. 3. The applicant provides no additional documents. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel makes no additional request or statement. 2. Counsel provides copies of: * A letter of support from the applicant's spouse * A letter from the applicant's former squad leader * DD Form 214MC (1900) (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 2 June 1972 * DD Form 257 MC (General Discharge Certificate), dated 2 June 1972 * Dependency Statement, dated 23 October 1974 * DD Form 4 (Enlistment Contract), dated 23 October 1974 * DD Form 214 (Report of Separation from Active Duty), for the period ending 28 March 1975 * DA Form 87 (Department of the Army Certificate of Training), dated 15 April 1978 * DD Form 4 (Enlistment/Reenlistment Document), dated 22 September 1980 * National Archives and Records Administration (NA) Form 13038 (Certification of Military Service), dated 10 April 2012 * Orders Number D-03-901165, issued by the U.S. Army Reserve Personnel Center, St. Louis, MO, dated 6 March 1984 * Department of Veterans Affairs (VA) medical records, dated from March 1989 to June 2007 * VA Form 21-4138 (Statement in Support of Claim), with enclosures, dated 30 July 2003 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 U.S. Marine Corps on 8 February 1972. He was subsequently separated on 2 June 1972 under honorable conditions with the issuance of a General Discharge Certificate. 3. On 23 October 1974, the applicant enlisted in the USAR for a period of 6 years. On 29 November 1974, he was ordered to active duty training at Fort Jackson, SC. 4. On 28 March 1975, the applicant was released from active duty and he was returned to the control of the USAR to complete his remaining service obligation. He had attained the rank/grade of private (PV2)/E-2 with 7 days lost time. He received an honorable characterization of service. 5. On 22 September 1980, the applicant again enlisted in the USAR for a 3 year period, in the rank/grade of specialist five (SP5)/E-5. 6. On 7 March 1982, a board of officers convened to consider the evidence concerning the applicant's performance of duty. It found that the applicant was undesirable for further retention in his unit because of misconduct -- unsatisfactory participation. The board recommended the applicant be transferred to the Individual Ready Reserve (IRR) with a tentative characterization of service of under other than honorable conditions. 7. Orders 69-8, issued by the 83rd U.S. Army Reserve Command, dated 14 April 1982, reduced the applicant from SP5/E-5 to PV2/E-2, effective that same day. 8. Orders 70-6, issued by the same command, dated 15 April 1982, reassigned the applicant from the 983rd Engineer Battalion to the IRR effective 15 April 1982. His characterization of service was under other than honorable conditions. 9. VA medical record reports, dated in March 1989, indicate the applicant had been previously diagnosed with a carcinoma of the rectum. He underwent radiotherapy and abdominal perineal resection in October 1983. 10. Orders Number D-03-901165, dated 6 March 1984, discharged the applicant, in the rank/grade of private (PV1)/E-1 from the IRR with an under other than honorable conditions characterization of service. 11. In a letter, dated 14 March 2012, the applicant's former squad leader stated the applicant suffered a heat stroke while at summer camp in 1983. He also received radiation treatments before and after his surgery. 12. In a letter, dated 25 March 2012, the applicant's spouse wrote that she was told her husband, while at summer camp in 1983, suffered a heat stroke and he had died three times; however, he was revived. He was never the same afterwards. He was irritable and he would tear up the house. She and the kids were afraid of him. They never knew what he would do. One time she went to the store and came home to find he had barricaded the door, overturned the stove and refrigerator; there was flour, sugar, and coffee all over the place. A short time later, he was told he had colon cancer and he had surgery in October 1983. He was prohibited for a period of 10 weeks from picking up anything that weighed more than a gallon of milk. For an additional 3 months, this prohibition was changed to anything over 25 pounds; then 50 pounds; and after a year, 75 pounds. He was not permitted to drive. She continued to call his Reserve unit to keep them informed of his condition, for which she was gratefully thanked. 13. Army Regulation 135-178 (Separation of Enlisted Personnel), chapter 7 provides for the separation of enlisted personnel of the Army Reserve and the Army National Guard for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, unsatisfactory participation, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition (Army Regulation 40-501 (Standards of Medical Fitness)) is not the direct or substantial contributing cause of his or her misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only the separation authority listed in Army Regulation 135-178, paragraph 1-25 may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation): a. States the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. b. Precludes physical disability processing or continuing disability processing of an enlisted member who is being processed for administrative separation under any regulatory provision which authorizes separation under other than honorable conditions. The only exceptions are when the officer exercising general court-martial jurisdiction (who may not delegate this authority) finds that the disability was the cause or a substantial contributing cause of the pertinent misconduct or that other circumstances warrant disability processing. 15. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his under other than honorable conditions discharge from the USAR should be upgraded to honorable due to physical disability. 2. The available evidence of record indicates a board of officers determined in March 1982 that the applicant's unsatisfactory participation made him undesirable for retention in his Reserve unit. Consequently, he was reassigned to the IRR and subsequently discharged in March 1984. His characterization of service was under other than honorable conditions. 3. The applicant’s spouse stated the applicant suffered a heat stroke at summer camp in 1983, and the available evidence shows the applicant suffered from a medical condition that required surgery in October 1983, followed by a period of convalescence. However, there is no convincing evidence that shows his medical condition was the cause for his unsatisfactory participation that occurred in early 1982, resulting in his transfer to the IRR. 4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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) AR20120007031 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120007031 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1