BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160002130 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 BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160002130 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. BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160002130 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 an upgrade of his under other than honorable conditions characterization of service to general service and change the narrative reason for separation to show he was discharged due to medical reasons. 2. The applicant states, in effect, he got into a disagreement with a noncommissioned officer who hit him in the face with a bowling ball which resulted in permanent damage to his nose. When he was asked if he wanted to remain in the military he declined. While waiting for his discharge he left because he wanted medical care. 3. The applicant provides no additional evidence; however, he claims the U.S. Army should have his medical records that would verify his medical issues. 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 20 June 1972. He completed training and he was awarded military occupational specialty 64C (Truckmaster). 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on: * 2 August 1972, for being derelict by not securing his wall locker * 9 January 1972, for without authority, absenting himself from his unit for the period 26 December 1972 through 5 January 1973 * 23 April 1973, for without authority, failing to go at the time prescribed to his appointed place of duty on 19 April 1973 * 23 July 1973, for without authority, absenting himself from his unit for the period 5 July through 19 July 1973 * 18 December 1973, for without authority, failing to go to his appointed place of duty on 15 and 17 December 1973 4. On 4 October 1973, the applicant's commander stated the applicant was a substandard Soldier and initiated a local Bar to Reenlistment Certificate which recommended the applicant be barred from reenlistment based on his record of NJP and poor conduct and efficiency. The applicant elected not to make a statement and the action was subsequently approved. 5. His records contain a Dental Health Record dated 18 December 1973, which notes the applicant was hit in the maxilla with a bowling ball; however, x-rays showed no fracture. He received a lacerated lip but sutures were not deemed practical. The applicant was instructed to return in 3 months for further x-rays and evaluation. 6. In concert with his separation processing, on 8 January 1974, the applicant underwent a physical and mental examination. The applicant stated he was in good health and the physician noted he observed no complaints, no disability and the applicant was qualified to be released from active duty. 7. On 10 January 1974, the applicant received a notice of initiation of elimination proceedings for unfitness under the provisions of paragraph 13-5a(1), Army Regulation 635-200 (Personnel Separations) from his commander. His commander informed him of his rights and the applicant acknowledged receipt on the same date. 8. On 10 January 1974, the applicant signed a document acknowledging that consulting counsel advised him that his commander was contemplating action to accomplish his separation for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13 – frequent incidents of a discreditable nature with civil or military authorities. Consulting counsel also advised him of the bases for the contemplated separation, its effects, of the rights available to him, and of the effects of any action taken to waive his rights. a. The applicant waived consideration of his case before a board of officers, he waived a personal appearance hearing before a board of officers. There is no indication that he would submit statements in his own behalf. The applicant also waived his right to representation by counsel. b. The applicant acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of 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 and that he may expect to encounter substantial prejudice in civilian life. 9. On 14 January 1974, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, Chapter 13, paragraph 13-5a, by reason of unfitness. He further requested the approving authority waive any requirement which may have existed concerning rehabilitation by further counseling or reassignment. He stated the applicant possessed no evidence of significant psychiatric disorder sufficient to warrant discharge for unsuitability or a medical discharge. The applicant demonstrated that he could do an acceptable job for the Army if he so desired. Despite the efforts of different commanders and noncommissioned officers to help him, he continued his pattern of misbehavior. He has repeatedly indicated that he desired administrative elimination without regard to the consequences and his record of deliberate misconduct indicated that further rehabilitative efforts would be useless. 10. On 21 January and 23 January 1974, his intermediate commanders recommended approval of the recommendation. The Command Judge Advocate subsequently reviewed the elimination action and found it legally sufficient. 11. On 1 February 1974, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13 and directed the issuance of an Undesirable Discharge Certificate. 12. On 11 February 1974, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1) with an under other than honorable conditions characterization of service. He completed 1 year, 4 months, and 6 days of creditable active military service with 43 days of lost time. 13. There is nothing in the applicant's records which show he suffered from an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty or warranted his entry into the Physical Disability Evaluation System. 14. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge. On 23 October 1984, the ADRB reviewed his discharge and determined he was properly and equitably discharged. The ADRB voted unanimously to deny his petition for an upgrade of his discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel: a. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. b. Paragraph 3-7b provides that a general discharge 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 honorable discharge. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating. It provides for medical evaluation boards which are 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(Standards of Medical Fitness). 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's service was characterized by multiple incidences of NJP which included being absent without leave on more than one occasion. This is a pattern of misconduct which confirmed his disregard for military authority. As a result, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 for unfitness. 2. Prior to separation, the applicant underwent a medical examination and he was found medically qualified for separation. There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention. 3. A disability separation requires the presence of impairment (illness or injury) that was incurred while entitled to basic pay and renders a Soldier unable to perform the duties required of his grade and/or specialty. 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. 4. Notwithstanding the applicant's contention the U.S. Army should have his medical records to verify his medical issues, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The Board is not an investigative body; therefore, the applicant has the burden of proving an error or injustice by a preponderance of the evidence. There is insufficient evidence in his records and he provides none to show he suffered a mental or a physical illness that rendered him unable to perform the duties required of his grade and/or specialty. The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired. 5. The evidence clearly shows he was properly and equitably discharged in accordance with the regulations in effect at the time. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. 6. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for a general characterization of service. Further, his service was interrupted by his repeated misconduct, not by reason of any disability. Therefore, his chain of command deemed him unfit for military service. Based on the available evidence, the narrative reason for his discharge appears to have been appropriately designated as unfitness in accordance with the applicable regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002130 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002130 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2