IN THE CASE OF: BOARD DATE: 15 January 2015 DOCKET NUMBER: AR20140008382 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 discharge to a general, under honorable conditions discharge based on physical disability. 2. The applicant states he was either misrepresented or had no representation during the discharge process. In addition, he was not provided adequate medical treatment or mental health care at the time. An upgrade of his discharge will allow him to qualify for veterans' benefits. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 11 January 1972. He was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. The applicant was tried by a special court-martial. a. He was found guilty of failing to obey a lawful order and of being derelict in the performance of his duties in that he willfully chambered a round in his weapon while on guard duty on 15 November 1972. b. He was sentenced to reduction to the grade of private (E-1), forfeiture of $75.00 per month for four months, and confinement at hard labor for three months. c. On 7 February 1973, the Special Court-Martial Convening Authority approved the sentence and ordered it executed. 4. He was advanced to private/pay grade E-2 on 27 April 1973. 5. The applicant's military personnel record shows he was – * reported absent without leave (AWOL) effective 26 November 1973 * dropped from the rolls of his unit on 26 December 1973 * returned to military control on 10 April 1974 6. A review of the applicant's military personnel record failed to reveal a DD Form 458 (Charge Sheet) or a copy of the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). 7. Special orders (SO) issued by Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, pertaining to the applicant show – * SO Number 130, dated 10 May 1974, reduced him to private (E-1) effective 3 May 1974 and the reason for his reduction was "pre-discharge" * SO Number 136, dated 16 May 1974, discharged him with an undesirable discharge effective 16 May 1974 8. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 16 May 1974 under the provisions of Army Regulation 635-200, paragraph 10-1, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He had completed 1 year, 7 months, and 26 days of net active duty service during this period and he had 253 days of time lost. It also shows the applicant was not available for signature at the time of his discharge. 9. Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, letter, dated 16 May 1974, shows the Assistant Adjutant notified the applicant that he was being administratively discharged from the U.S. Army on 16 May 1974. He also provided the applicant copies of his DD Form 214, discharge orders, discharge certificate, and a statement of debarment from the Fort Dix, NJ, military reservation. 10. A review of the applicant's military personnel record failed to reveal evidence of any unfitting medical conditions. 11. A further review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. Chapter 3, 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. 13. 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 regulation provides that 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 AND CONCLUSIONS: 1. The applicant contends that his under other than honorable conditions discharge should be upgraded because he was either misrepresented or had no representation during the discharge process, he was not provided adequate medical treatment or mental health care at the time of his discharge, and an upgrade of his discharge will allow him to qualify for veterans' benefits. 2. The applicant returned to military control after being AWOL for more than four months and he was voluntarily discharged approximately one month later. a. There is no evidence of record, and the applicant provides insufficient evidence, that shows he was diagnosed with any unfitting medical conditions during the period of service under review. b. The evidence of record shows he voluntarily requested discharge and that he was administratively separated in absentia. Thus, for reasons that are not clear, the applicant was not available during the final stage of his administrative separation processing. c. Therefore, the applicant's contention that he was not provided adequate medical treatment or mental health care at the time of his discharge appears to be disingenuous. d. In any event, his contention alone is not a basis for correcting his records to show he was discharged based on an unfitting medical condition. 3. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. Therefore, in the absence of evidence to the contrary, the discharge process (including the right to consult with counsel), the type of discharge, and the character of discharge directed is presumed to have been, and still is, appropriate. 4. During the period of service under review the applicant was convicted by special court-martial, he had a total of 253 days of lost time, he was reduced to private (E-1) prior to his discharge, and he failed to complete his 3-year enlistment obligation. Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge. 5. Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief. 6. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veterans' benefits is not within the purview of the ABCMR. Any questions regarding eligibility for such benefits should be addressed to the Veterans Administration or appropriate government agency. 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) AR20140008382 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140008382 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1