IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160005886 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: 28 September 2017 DOCKET NUMBER: AR20160005886 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: 28 September 2017 DOCKET NUMBER: AR20160005886 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 character of service from under other than honorable conditions (UOTHC) to honorable. 2. The applicant states, in effect, he had been ill with rheumatic fever, which left him with a heart murmur. He registered for the draft and received a military physical by the draft medical board. The draft board told him he was exempt from service due to a heart murmur. A year later, the selective service recalled him and he went to Fort Knox, KY, for basic training. a. After two weeks in basic training, he became ill with strep throat and a urinary tract infection. After his release from the hospital, he went back to his training unit, but he had a relapse. He tried to perform his duties, but his medical circumstances were beyond his control. He was not allowed to go "sick-call" so he departed absent without leave (AWOL) to get medical attention at home. b. Military authorities apprehended him at home and court-martialed him; this happened twice. The second time he contacted a military lawyer who told him he needed a medical discharge due to his heart murmur. c. After his special court-martial (SPCM) conviction and time in confinement, he met with the clemency board. This board offered him a discharge with an Undesirable Discharge, which he accepted. d. Since his release from the military, he has led a productive life. He contributed to society until 1994, when he had a massive heart attack at work and underwent bypass surgery, twice. In 1997, he had a stroke and had carotid artery surgery. In May 2000, he was forced to retire. In 2004, he was diagnosed with cancer and would now like to have his characterization of service upgraded in order to receive assistance with his medication. e. His medical records are at Ireland Army Hospital, Fort Knox, KY, which shows his health history, but he was unable to obtain a copy of his records. 3. The applicant provides a self- authored statement. 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 medical records are not available for review. 3. The applicant's record contains a letter from his doctor, dated 22 June 1967. The Indiana Local Board, Selective Service System, date stamped this letter on 22 June 1967 acknowledging receipt. The applicant's doctor states: I treated him over a period of several months for rheumatic fever …I followed him along for several years after this because he developed a grade T murmur during his initial illness. I last checked him in August 1966. I again examined him today. He is asymptomatic. B/P [Blood Pressure] 130/70 Heart rate, rhythm and sounds normal. I detected no murmur at rest. However, on checking him after exertion, I could hear a grade T (systolic murmur). B[lood] P[ressure] remained normal... 4. On 6 March 1968, the applicant was inducted into the Army of the United States. 5. On 25 March 1968, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on 24 March 1968. 6. On 9 September 1968, the applicant was convicted by a special court-martial (SPCM) of being, without proper authority, absent without leave (AWOL) from his assigned unit from on or about 18 May 1968, to on or about 7 August 1968. His punishment consisted of restriction to the limits of the company areas for 60 days and forfeitures of $68.00 of pay per month for 6 months. 7. The applicant’s record contains a Report of Psychiatric Evaluation from the Mental Hygiene Consultation Service at Fort Knox, KY, dated 12 March 1969. The evaluation notes the applicant was mentally responsible, able to distinguish right from wrong, to adhere to the right, and had the mental capacity to understand and participate in board proceedings. In addition, they found no evidence of underlying, previously unrecognized, medically disqualifying emotional illness. 8. On 28 March 1969, the applicant was convicted by an SPCM of being, without proper authority, AWOL from his assigned unit from on or about 12 October 1968, to on or about 26 February 1969. His punishment consisted of confinement at hard labor for 6 months and forfeiture of $68.00 of pay per month for 6 months. 9. On 5 April 1969, the applicant consulted with legal counsel who advised him of the basis for the contemplated separation action and of the procedures and rights available to him. He acknowledged he understood that if he were issued an undesirable discharge he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws. He waived consideration of his case by a board of officers and declined to submit a statement on his own behalf. 10. On 10 April 1969, the applicant appeared before a clemency board, and he was recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 11. On 10 April 1969, the applicant's immediate commander and intermediate commanders recommended his separation under the provisions of Army Regulation 635-212, by reason of unfitness, and the issuance of an Undesirable Discharge Certificate. The immediate commander cited the basis for his recommendation was the applicant's NJP, two SPCM convictions, and a total of 308 days of lost time due to time in confinement. 12. On 17 April 1969, the separation authority approved the applicant’s separation action under the provisions of Army Regulation 635-212, and directed the issuance of an Undesirable Discharge Certificate. 13. On 22 April 1969, SPCM Number 705, issued by Headquarters Special Troops, U.S. Army Armor Center, Fort Knox, KY, shows the portion of the applicant’s sentence that provided for 6 months confinement at hard labor was remitted, effective 23 April 1969. The unexecuted portion of the sentence to confinement at hard labor for 4 months was suspended for 4 months, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action. 14. On 24 April 1969, the applicant was discharged accordingly. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness. His DD Form 214 shows he received a UOTHC character of service. He completed 3 months and 14 days of total active service with 308 days of time lost due to being AWOL or in confinement. 15. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations; however, on 2 November 1981, his case was denied. REFERENCES: 1. Army Regulation 635-212, then in effect, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking. This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. This regulation 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. This regulation 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. 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. a. Paragraph 2-9 contains guidance on the burden of proof. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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 evidence of record shows that the applicant served on active duty less than 4 months. During his period of military service from 6 March 1968 to 24 April 1969, the applicant received an NJP, and two SPCM’s for being AWOL, with an accumulation of 308 days of lost time, including time in confinement. 2. Accordingly, his command initiated separation action against him for unfitness. The applicant received a psychological evaluation and was found to be medically fit to participate in separation board proceedings. 3. The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. Lacking evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 4. There is no evidence that would indicate his discharge was not proper or equitable. 5. The ABCMR does not routinely grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits. The Board decides every case individually, based upon its own merit. Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005886 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005886 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2