IN THE CASE OF: BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150015099 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: 14 February 2017 DOCKET NUMBER: AR20150015099 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: 14 February 2017 DOCKET NUMBER: AR20150015099 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 general, under honorable conditions discharge. 2. The applicant states he passed all entry physical examinations and was a healthy individual upon entry into the U.S. Army on 23 June 1971. In 1972, he was discharged due to exposure to tuberculosis (TB). He was under the impression that he was honorably discharged and fully eligible for veterans benefits. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under honorable conditions. 3. The applicant provides a self-authored statement (summarized above) and copy of a Department of Veterans Affairs (VA) rating decision (1 page). 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 23 June 1971 for a period of 3 years. Upon completion of training he was awarded military occupational specialty 94B (Cook). 3. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on two occasions, as follows: * on 14 July 1971, for failing to go at the time prescribed to his appointed place of duty on 13 July 1971 * on 8 September 1971, for failing to go at the time prescribed to his appointed place of duty on 7 September 1971 4. He was advanced to private (E-2) on 23 October 1971. He was assigned overseas to Germany on 19 December 1971. 5. He accepted NJP under Article 15, UCMJ, on 19 May 1972, for being absent from his unit without authority from 11 May to 16 May 1972. His punishment included reduction to grade E-1. 6. A DA Form 19-32 (Military Police Report), dated 24 May 1972, shows the Officer in Charge, Mainz Military Police Station, notified the company commander that the applicant failed to return his temporary license plates, thereby violating a U.S. Army Europe regulation. 7. On 1 June 1972, the commander initiated separation action against the applicant under the provisions of (UP) Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability based on his apathetic approach towards military life and excessive instances of misconduct. He notified the applicant of the intended action and his rights. 8. A Standard Form (SF) 601 (Health Record – Immunization Record), Sensitivity Tests (TB), shows: Date Type Results 24 June 1971 TB Tine Negative 26 June 1972 TB Tine Positive 30 June 1972 Purified Protein Derivative (PPD) Positive Intermediate 9. An SF 88 (Report of Medical Examination), dated 15 June 1972, in pertinent part, shows in: * item 50 (Other Tests): TB Tine, 26 June 1972, Positive * item 74 (Summary of Defects and Diagnoses) – * Positive Tine Test Noted * Tine Test at the Time of Induction (Negative) * item 75 (Recommendations – Further Specialist Examinations Indicated) – * Medical Consultation (Completed 26 June 1972) * INH [Isonicotinic Acid Hydrazide] Therapy * 300 Milligrams Curative Dose Times 1 Year from 3 July 1972 * Follow-up with Detroit VA for One Month * item 77 (Examinee): Is Qualified for Separation (AR 635-212) * the examining physician and approving authority signed the form 10. On 30 June 1972, the applicant consulted with legal counsel and was advised of his rights. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. a. He acknowledged he understood that if he received an undesirable discharge under conditions other than honorable he may be ineligible for many or all benefits as a veteran under both Federal and State laws. b. He elected not to submit statements in his own behalf. He waived consideration of his case by a board of officers, personal appearance before a board of officers, rehabilitative transfer, psychiatric examination, and representation by counsel. 11. The chain of command recommended approval of the discharge with the issuance of a general, under honorable conditions discharge. 12. On 10 July 1972, the separation authority approved the applicant's discharge UP AR 635-212 by reason of unsuitability and directed the issuance of a General Discharge Certificate. 13. The applicant's DD Form 214 shows he entered active duty this period on 23 June 1971 and he was discharged on 20 July 1972 UP AR 635-200 with Separation Program Number 46A [Apathy, Defective Attitudes, and Inability to Expend Effort Constructively]. He had completed 1 year and 28 days of net active service this period. 14. A review of the applicant's military personnel records failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 15. In support of his application the applicant provides one (1) page of a rating decision, undated, that shows, effective 22 April 2013, the VA determined the applicant is permanently disabled due to diabetes, diabetic complications, and adjustment disorder. It also shows the claim for service connection for TB remains denied because the evidence submitted is not new and material. REFERENCES: 1. AR 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6b(3), in pertinent part, shows that members who demonstrated apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively were subject to separation for unsuitability. An undesirable discharge was normally considered appropriate. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3, 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. b. Chapter 3, paragraph 3-7b, provides that an under honorable conditions discharge is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant contends his general, under honorable conditions discharge should be upgraded because he was healthy and qualified for entrance into the U.S. Army and he was discharged due to exposure to TB. 2. The evidence of record shows: a. the applicant's TB Tine test at the time of his processing for entry into military service was negative; b. TB Tine testing during his separation physical examination was positive. He was prescribed INH therapy for a 1-year period and instructed to follow-up at the VA; and c. he was found medically qualified for separation processing. d. The evidence of record fails to show that he had a medically unfitting condition or that his separation was due to exposure to TB. 3. The applicant's discharge for unsuitability UP AR 635-212 based on apathy and inability to expend effort constructively was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. The separation authority determined his service did not rise to the level required for an honorable characterization of service. 4. The honorable characterization is appropriate when the quality of the member's service 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. 5. The evidence of record shows the applicant violated a lawful regulation, he received NJP on three occasions (one for a being absent without leave), he was reduced to private (E-1), and he failed to complete his active duty service obligation. His service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015099 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015099 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2