IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009093 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009093 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009093 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 correction of his: a. DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 July 1984, to show he received an honorable discharge (HD), a general discharge (GD), or a medical discharge. b. DD Form 214 for the period ending 16 December 1977, to show he entered active duty in 1975 vice 1976. 2. The applicant states he wants a change to his discharge to an honorable, general, or a medical discharge. He also requests his date of entry into the military be corrected to 1975 vice 1976. 3. The applicant provides copies of his DD Forms 214, DD Form 293 (Application for the Review of Discharge Form the Armed Forces of the United States), and Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative). 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 service record is incomplete. The complete facts and circumstances of his discharge are not available for review with this case. 3. A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows on 24 July 1974, the applicant enlisted in the New York Army National Guard (NYARNG). 4. The applicant’s DD Form 214 for the period ending on 16 December 1977, shows on 23 August 1976, the applicant enlisted in the Regular Army (RA). 5. The applicant’s DA Form 2-1 (Personnel Qualification Record), item 35 (Record of Assignments) shows he was on active duty from August 1976 to December 1977. 6. On 16 December 1977, he was honorably released from active duty. His DD Form 214 for this period shows 7 months and 13 days of prior active service. He completed 1 year, 3 months, and 24 days of active duty service this period. 7. The applicant’s DD Form 214 for the period ending on 23 July 1984, shows he enlisted in the RA on 20 November 1979. 8. On 23 July 1984, he was discharged with a characterization of service of under other than honorable conditions (UOTHC) due to misconduct. His DD Form 214 shows in: * item 18 (Remarks) – “Time lost before normal expiration of term of service: 1,173 days” and “Time lost after normal expiration of term of service 19 November 1983: 244 days” * item 21 (Signature of Member Being Separated) – “MEMBER NOT AVAILABLE TO SIGN” * item 24 (Character of Service) – “UNDER OTHER THAN HONORABLE CONDITIONS” * item 25 (Separation Authority) – “Chapter 14, AR [Army Regulation] 635-200” * item 28 (Narrative Reason for Separation) – “MISCONDUCT – SERIOUS OFFENSE – DESERTION” 9. There is no documentation to shows the applicant entered active duty in 1975 vice 1976. 10. There is nothing in the applicant’s record to show he should have received a medical discharge. 11. There is no evidence that indicates he applied to the ADRB for an upgrade of his discharge. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that 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. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally considered appropriate. However, the separation authority may direct a GD if such is merited by the Soldier's overall record. a. Paragraph 3-7a provides that an HD 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. b. Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD. DISCUSSION: 1. The applicant contends his UOTHC discharge should be upgraded to a HD, GD, or a medical discharge, and that his DD Form 214 for the period ending on 16 December 1977, should be corrected to show his date of entry into active duty service to reflect 1975 vice 1976, was carefully considered; however, there is insufficient evidence to support his contention. 2. The applicant’s record is void of the complete facts and circumstances that led to his discharge. However, his record contains a properly-constituted DD Form 214 for the period ending on 23 July 1984, that shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct (desertion) with a characterization of service of UOTHC. 3. A review of the evidence does not show any documentation to show the applicant enlisted in the RA in 1975 vice 1976. Although the applicant had active service prior to his RA service, no DD Form 214 is available for any earlier period of active duty service. It is probable that he served on active duty for initial entry training while a member of the NYARNG. The available records do not contain any evidence indicating when that period of active duty may have occurred. 4. There is no evidence in the applicant’s record to show the applicant should have received a medical discharge, nor does he provide any documentation supporting his request. 5. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009093 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009093 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2