2.  The applicant requests that his records be corrected to show that he was medically retired from the Army.

3.  The applicant states that he was pushed out of the Army with only an honorable discharge.  He knew he should have received a medical retirement at that time, but he was too occupied fighting an erroneous desertion charge, with the possibility of confinement, to effectively fight his discharge.  He claims that the VA has rated him 20 percent disabled.

4.  The applicant's military records show that he was inducted into the Army on 4 October 1967, was awarded the military occupational specialty (MOS) of infantryman, and served in Vietnam.  While in Vietnam, he was wounded by a piece of shrapnel from an enemy booby trap which struck his leg while he was on a combat operation.

5.  The applicant reenlisted for 3 years on 27 July 1968 while in Vietnam.  He was promoted to pay grade E-4 and then reduced to pay grade E-3 by nonjudicial punishment.  He completed his tour in Vietnam on 15 March 1969 and was returned to the United States and stationed at Fort Benning, Georgia.  Thereafter, he was assigned to Germany on a permanent change of station on 24 February 1970.

6.  While in Germany, on 30 November 1970, the applicant was struck by an automobile driven by a German national while he was crossing a street.  He was hospitalized and treated for a fractured leg and a fractured skull.  He remained hospitalized, listed as seriously ill, and was transferred to the Portsmouth, Virginia, Naval Hospital on 29 July 1971, 3 days past the expiration of his term of service (ETS).

7.  Administrative personnel at the Naval hospital noted that the applicant had passed his ETS and had not signed a consent affidavit to remain on active duty for the purpose of continuing his medical care and, if deemed necessary, to be medically boarded.  When the administrative personnel attempted to rectify that omission by having the applicant sign the affidavit, he had gone AWOL.

8.  He was carried as AWOL from 2 August 1971 until he returned to the hospital on 26 August 1971.  Administrative staff again attempted to have the applicant sign the consent affidavit to remain on active duty to continue receiving medical care at that time, to no avail.  The applicant left AWOL again the same day of his return.

9.  He remained AWOL until 30 June 1974, at which time he was returned to military control.  He was then assigned to the Personnel Control Facility (PCF) at Fort Meade, Maryland.  On the inprocessing interview sheet completed at the time, in the section of that sheet used for recommendations for the disposition of the applicant, the PCF company commander and the battalion commander both recommended that the applicant be tried by special court-martial.  However, the chief trial and review officer stated that the applicant had told him that he had been discharged while at the Naval hospital.  The trial and review officer recommended that the applicant undergo brainwave tests at Walter Reed Army Medical Center, those tests already having been arranged by Kimbrough Army Hospital, Fort Meade, and then have the applicant considered for separation due to physical unfitness.

10.  Prior to being able to effect that referral, he departed AWOL from the Fort Meade PCF on 23 July 1974.  He was apprehended on 19 November 1974 and returned to the Fort Meade PCF.

11.  On another inprocessing interview sheet, it is recorded that the applicant requested administrative discharge.  In the section of that sheet used for recommendations for the disposition of the applicant, the PCF company commander, the chief trial and review officer, and the battalion commander all recommended that the applicant be tried by general court-martial.

12.  Charge sheets were then written for the applicant’s three periods of AWOL.  However, there is no indication that any action was taken on those charges.

13.  On 12 December 1974 the applicant was honorably discharged by reason of completion of required period of service.  He had 3 years, 11 months and 10 days of creditable service and 1184 days of lost time.

14.  Army Regulation 635-200 dated 10 April 1974, in effect at the time, paragraph 2-6, specifies that soldiers who require medical care or who are sick in a hospital when their period of service expires may, with their consent, be retained in service beyond their period of service in order that they may complete the required medical care or hospitalization and, if required, be brought before a physical evaluation board.  Soldiers who are in this category will be counseled on their right to request retention on active duty and are required to complete a consent affidavit requesting or declining retention.  That paragraph specifically states that “No enlisted person may be held in service beyond the expiration of his term of service without his written consent in affidavit form.”  However, paragraph 2-5 of that regulation specifies that an individual who is overseas will not be separated until he or she is returned to the United States.

15.  In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical advisor.  The ARBA medical advisor stated that the applicant was admitted to the naval hospital for anosmia (the inability to smell) which is not, in itself, unfitting.  The medical advisor notes that the applicant expressed no reason for going AWOL other than the fact that he did not like the Army.  The medical advisor opines that if the applicant was suffering from a serious consequence of a head injury, he would have been hospitalized in the civilian community during his episodes of AWOL.  No record of any such hospitalization is contained in the applicant’s records nor has the applicant submitted any such documentation.

CONCLUSIONS:

1.  The applicant’s request to be medically retired is without merit since he refused to be retained on active duty beyond his ETS.  By refusing to be retained, he effectively waived any right he may have had to be considered for a disability separation with severance or retired pay.

2.  Notwithstanding the foregoing conclusion, the Board notes that the applicant was past his ETS during all three periods of time he was declared AWOL, and he had not signed a consent affidavit to remain on active duty.  As such, he had no military status during the periods he had been declared AWOL and his military records incorrectly show him as having lost time.

3.  This is most likely the reason why no action was taken against him under the UCMJ.

4.  Since the applicant was never legally retained beyond his ETS, he should have been discharged for completion of required service as soon as he was transferred back to the United States, 29 July 1971.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected: 

	a.  by showing that the individual concerned was retained on active duty for the convenience of the Government from 26 to 29 July 1971;

	b.  by showing that he was honorably discharged by reason of the expiration of his term of service on 29 July 1971;

	c.  by deleting from his records any mention of his being AWOL or being dropped from the rolls of the Army; and

	d.  by voiding the DD Form 214 showing the period of service from 27 July 1968 to 12 December 1974.

2.  That the individual concerned be issued a new DD Form 214 for the period covering 27 July 1968 through 29 July 1971, showing no lost time.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON