RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2005
	DOCKET NUMBER:  AR20050001240 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Larry C. Bergquist

Member

Ms. Carmen Duncan

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the character of his service on his separation document be changed from under other than honorable conditions to honorable.

2.  The applicant states, in effect, that he re-entered the military with the intention of obtaining the remaining years need for retirement.  The applicant continues that he had to attend basic training again and that he injured his foot during this training.

3.  The applicant argues that he did not receive adequate medical care for his foot and that he sought assistance from his First Sergeant, the Company Commander, and the Chaplain.  The applicant further argues he told them his foot pain was adversely effecting his training and was told to "tough it out."

4.  The applicant contends that he reached a "breaking point" and left.  The applicant concludes he finally turned himself in and was held in confinement until his discharge.

5.  The applicant provides a personal statement, a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty), and copies of medical documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 October 1988.  The application submitted in this case is dated 18 January 2005.

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 limitations 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’s record shows that after a break in service he reenlisted in the Regular Army on 9 March 1988.  The applicant did not complete basic or advanced individual training.  He was not awarded a military occupational specialty. 
4.  On 26 July 1988, charges were preferred against the applicant for being absent without leave (AWOL) during the 9 June 1988 through 20 July 1988.  

5.  On 27 July 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

7.  The applicant's records contain several medical documents that show he was evaluated by military medical personnel.  Each of the evaluations essentially shows the applicant was diagnosed with swelling of the left foot and ankle but that there was no stress fracture present.

8.  The applicant's records also contain a Medical Examination For Separation document which shows that he declined a separation medical examination.  

9.  On 19 August 1988, the separation authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge.  On 13 October 1988, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of only 5 months and 24 days of creditable active military service during his current enlistment and that he accrued 42 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

11.  There is no evidence in the available records which show the applicant was treated for or diagnosed with a disqualifying medical condition.

12.  The applicant provided several medical documents which show that he was diagnosed and treated for Osteochondritis desiccans  (Inflammation of both bone and cartilage).  These documents do not show the direct cause of the applicant's injuries.  

13.  There is no evidence in the available records which show the applicant sought assistance from his chain of command or other official military personnel for assistance with injuries that were preventing him from performing his required duties.

14.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his character of service on his separation document should be changed from under other than honorable conditions to honorable because he sustained an injury to his foot which forced him to go AWOL.


2.  There is no evidence in the available records and the applicant has not provided sufficient evidence which supports his contention that he was diagnosed with or treated for a disqualifying medical condition or a medical condition that would preclude him from successfully performing his military duties. 

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.  

4.  The applicant's record of service shows charges were preferred against the applicant for being AWOL for 42 days.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's excessive lost time also renders his service unsatisfactory. Therefore, he is not entitled to either a general discharge or an honorable discharge.

6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 October 1988.  Therefore, the time for him to file a request for correction of any error or injustice expired on 12 October 1991.  He failed to 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 timely file in this case.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MM_____  _CD____  __LB ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.





    __Mark D. Manning__
          CHAIRPERSON




INDEX

CASE ID
AR20050001240
SUFFIX

RECON

DATE BOARDED
2005/10/04
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19881013
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON
Chap 10
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.

2.

3.

4.

5.

6.