RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 2 December 2003
         DOCKET NUMBER: AR2003091661


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Patrick H. McGann		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his discharge under other than honorable conditions be upgraded to honorable.

2. The applicant states that he received awards and decorations and that he was wounded in combat. He also contends, in effect, that prior to his discharge, he was being considered for a physical disability separation and was unfairly denied one. He goes on to state that after he returned from Vietnam he was physically unfit and was unable to perform his duties due to the burns he received in Vietnam.

3. The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); a copy of his DD Form 214 (Report of Separation from Active Duty); and a Clinical Record Cover Sheet, dated 9 August 1968.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
23 July 1974. The application submitted in this case is dated 27 August 2002.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted on 27 March 1967 for a period of 3 years. He successfully completed basic combat training, advanced individual training, and basic airborne training. The applicant served as an infantryman in Vietnam from 14 December 1967 until he was wounded in action and evacuated to Brook General Hospital at Fort Sam Houston, Texas, on 19 April 1968 for further medical treatment.

4. The applicant provided medical evidence which shows that he received second and third degree burns to his body when mortar charges exploded during an enemy attack on 14 April 1968 in Vietnam. This medical record also shows that competent medical authority at Brook General Hospital at Fort Sam Houston, Texas, determined that his burns were healed on 13 June 1968, that his physical profile was 113111, and that his estimated date of completion at the hospital was 9 August 1968.


5. The applicant went absent without leave (AWOL) on 12 November 1968 and returned to military control on 31 May 1974. Charges were preferred against the applicant for the AWOL period. Trial by special court-martial was recommended.

6. On 5 June 1974, the applicant underwent a separation physical examination and was found qualified for separation.

7. On 10 June 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of the Veterans Affairs and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge. Additionally, he elected to submit a statement in his own behalf. In summary, the applicant stated that after he was assigned to the 82nd Airborne Division he suffered from the heat and the sun due to the burns he received on his legs in Vietnam. He stated that he could not get anything done for his legs so he went AWOL. He requested that he be discharged and he pointed out that he served honorably until he went AWOL, that he turned himself in, that he had a job waiting for him at home and that he had a 5-week old son.

8. The intermediate commanders recommended that the applicant's request for discharge be approved and that he be furnished an Undesirable Discharge Certificate.

9. On 10 July 1974, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

10. Accordingly, the applicant was discharged under other than honorable conditions on 23 July 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 1 year, 9 months and
8 days of total active service with 2026 days of lost time due to AWOL.

11. There is no evidence in the applicant's service personnel records which shows that he was undergoing disability processing prior to his voluntary request for discharge.



12. There is no evidence that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-3a, provides that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service under other than honorable conditions.

15. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity.

16. Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.





DISCUSSION AND CONCLUSIONS:

1. Medical evidence shows that competent medical authority at Brook General Hospital at Fort Sam Houston, Texas, determined that the applicant's burns were healed on 13 June 1968, that his physical profile was 113111, and that his estimated date of completion at the hospital was 9 August 1968. In accordance with the governing regulation, numerical designator "3" indicates that an
individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. There is no evidence of record, and the applicant has provided no evidence, which shows he received an assignment which was not commensurate with his capacity or that he was physically unfit.

2. There is no evidence of record, and the applicant has provided no evidence, which shows that he was undergoing disability processing prior to his voluntary request for discharge. In addition, in accordance with Army Regulation 635-40, once chapter 10 proceedings were initiated, physical disability processing could no longer resume.

3. Medical evidence of record also shows the applicant was found qualified for separation on 5 June 1974.

4. The applicant’s record of service included 2026 days of lost time and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

5. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

6. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7. Records show the applicant should have discovered the error or injustice now under consideration on 23 July 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 July 1977. However, the applicant did not file within the 3-year statute of limitations and has not







provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

FNE___ MHM_____ PHM_____ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in
the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  __Fred N. Eichorn_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091661
SUFFIX
RECON
DATE BOARDED	20031202
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19740723
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.