RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 September 2007
	DOCKET NUMBER:  AR20070002429 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Ms. Laverne V. Berry

Member

Mr. Ronald D. Gant

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, in effect, that his under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that his unauthorized absence from the Army was caused by his illness.

3.  The applicant provides a copy of State of Illinois, Department of Veterans Affairs, Danville, Illinois, letter, dated 7 February 2007, subject:  Discharge Upgrade [Applicant’s Last Name]; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 26 June 1980; 2 Standard Forms (SF) 93 (Reports of Medical History), dated 2 August 1979 and 14 April 1980; SF 88 (Report of Medical Examination), dated 2 August 1979; and SF 608 (Health Record - Dental), undated.

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 military service records show that he enlisted in the U.S. Navy on 10 August 1977; was referred to the Navy Aptitude Board by the Recruit Aptitude Board because of poor military performance and refusal to accept military discipline; appeared before the Navy Aptitude Board on 7 September 1977; and administratively separated from the naval service on 13 September 1977 as unsuitable for further training due to failure to adjust to minimum training standards.

3.  The applicant's military service records contain an SF 93 (Report of Medical History), dated 2 August 1979, prepared by the applicant in preparation for his medical examination for entrance into the U.S. Army.  In pertinent part, Item 11 (Have You Ever Had or Have You Now), “Epilepsy or fits,” shows the applicant placed a checkmark in the “No” column.  The applicant's military service records also contain an SF 88 (Report of Medical Examination), dated 2 August 1979, prepared by the physician upon his medical examination of the applicant for enlistment in the U.S. Army.  This document shows, in pertinent part, that no disqualifying defects or communicable diseases were noted and that the applicant was qualified for enlistment.

4.  The applicant’s military service records show that he enlisted in the U.S. Army Reserve on 3 August 1979 and entered active duty in the Regular Army for a period of 4 years on 12 September 1979.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic).  On 8 November 1979, he was assigned to Company B, 2nd Battalion, 4th Training Brigade, U.S. Army Armor Center (USAARMC) and Fort Knox, Fort Knox, Kentucky, in Duty MOS 63C (Service School Track Vehicle Mechanic).

5.  The applicant's military service records contain a DA Form 4187 (Personnel Action), dated 7 March 1980, that shows the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL), effective 0800 hours, 6 March 1980.

6.  The applicant's military service records contain a DA Form 4187, dated
4 April 1980, that shows the applicant's duty status was changed from AWOL to dropped from the rolls (DFR), effective 0800 hours, 4 April 1980.

7.  The applicant's military service records contain a DA Form 4187, dated
11 April 1980, that shows the applicant's duty status was changed from DFR to attached (ATCH), effective 2200 hours, 8 April 1980.

8.    The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 21 (Time Lost) of this document shows that the applicant was AWOL for 33 days, from 6 March 1980 through 7 April 1980.

9.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows, on 14 April 1980, the first lieutenant serving as Commander, Special Processing Company (SPC), U.S. Army Personnel Control Facility (USA PCF), USAARMC and Fort Knox, Fort Knox, Kentucky, preferred charges against the applicant for, without authority, absenting himself from his organization from on or about 6 March 1980 until on or about 8 April 1980.

10.  The applicant's military service records contain an SF 93, dated 14 April 1980, prepared by the applicant in preparation for his medical examination prior to his separation from the U.S. Army.  In pertinent part, Item 11 (Have You Ever Had or Have You Now), “Epilepsy or fits,” shows the applicant placed a checkmark in the “Yes” column.  Item 8 (Statement of Examinee’s Present Health and Medications Currently Used), shows the applicant noted, “Epilepsy & Dilantin - Good.”  The applicant's military service records also contain an SF 88, dated
14 April 1980, prepared by the physician upon his medical examination of the applicant prior to his separation from the U.S. Army.  Item 74 (Summary of Defects and Diagnoses) of this document, shows the physician noted, “None x [except] epilepsy.”  This document also shows, in pertinent part, that the applicant was qualified for separation and the physician affixed his signature on the document. 

11.  On 15 April 1980, the applicant requested a discharge for the good of the Service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial and of the possible effects of an Under Other Than Honorable Conditions Discharge, if his request for discharge is approved, and of the procedures and rights available to him.

12.  The applicant signed his request for discharge, which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

13.  The applicant's request for separation contains a copy of a letter written by the applicant to the separation authority; however, the writing on the document is too light to decipher its contents.

14.  On 8 May 1980, the first lieutenant serving as the Commander, SPC, USA PCF, Lightning Brigade, USAARMC and Fort Knox, Fort Knox, Kentucky, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  The commander indicated that the applicant submitted a statement in his own behalf; that the applicant’s conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge; and that based on his previous record, punishment can be expected to have a minimal rehabilitative effort.  The commander also stated that there does not appear to be any reasonable grounds to believe that the individual was, at the time of his misconduct, mentally defective, deranged, or abnormal.  The commander recommended that the applicant be furnished an under other than honorable conditions discharge.

15.  On 8 May 1980, the lieutenant colonel serving as Commander, USA PCF, Lighting Brigade, USAARMC and Fort Knox, Fort Knox, Kentucky, recommended approval of the separation action and that the applicant be furnished an under other than honorable conditions discharge.  The action was then forwarded to the separation authority.

16.  On 15 May 1980, the Commander, USAARMC and Fort Knox, Fort Knox, Kentucky, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200, directed that the applicant be reduced to the rank of private/pay grade E-1, and that the applicant be issued a discharge under other than honorable conditions.

17.  The applicant's DD Form 214 shows he was discharged under other than honorable conditions on 26 June 1980, in accordance with the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  Item 26 (Separation Code) contains the entry “JFS” and Item 28 (Narrative Reason for Separation) contains the entry “Administrative Discharge - conduct triable by court-martial.”  The applicant's DD Form 214 also shows he completed 8 months and 13 days net active service; had 33 days of time lost under Title 10, United States Code 972; and 73 days excess leave from 15 April 1980 through 26 June 1980. 

18.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

19.  In support of his application, the applicant provides a copy of State of Illinois, Department of Veterans Affairs (VA), Danville, Illinois, letter, dated 7 February 2007, subject:  Discharge Upgrade [Applicant’s Last Name].  In this letter, the Veterans Service Officer (VSO) states that the applicant is currently incarcerated and the VSO is working to file a VA disability claim on his behalf.  The VSO also states, in effect, that based on the character of the applicant’s service, the VA decided the applicant is not entitled to veterans benefits.  The VSO also states, in effect, that the applicant acquired and was diagnosed with epilepsy while on active duty, which he believes caused the applicant’s actions and led to the character of discharge he received.  The VSO further states, in effect, that he does not think the Army properly considered the applicant’s medical condition when he was discharged.  The applicant also provides a copy of his DD Form 214, with an effective date of 26 June 1980; 2 SFs 93, dated 2 August 1979 and 14 April 1980; and a SF 88, dated 2 August 1979, which are also filed in the applicant’s military service records and have been previously considered as evidence in this Record of Proceedings.

20.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 
It identifies the SPD code of “JFS” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation
635-200, Chapter 10, based on conduct triable by court-martial.

21.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

22.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

23.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded to a general (under honorable conditions) discharge because his unauthorized absence from the Army was caused by his medical condition.  However, the applicant provides insufficient evidence to show that his medical condition contributed to his unauthorized absence.

2.  The evidence of record shows the applicant’s medical condition (i.e., epilepsy) is documented in his military service records; specifically, in his separation medical examination.  The evidence of record also shows that, at that time, the applicant’s medical condition was being treated with medication (i.e., Dilantin) and the applicant indicated his health was “Good.”  There is no evidence that shows the applicant’s medical condition contributed to his unauthorized absence. In fact, the evidence of record shows that the applicant’s commander stated that, at the time of the applicant’s misconduct, the commander did not (emphasis added) believe the applicant was mentally defective, deranged, or abnormal and the attending physician found the applicant medically qualified for separation.

3.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200, for the good of the Service to avoid trial by court-martial, was voluntary, administratively correct, and in compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record of service, which shows 33 days AWOL, 73 days excess leave, and completion of less than 9 months of his 48-month enlistment, did not meet the standards of satisfactory conduct and performance of duty for Army personnel.  Therefore, the applicant is also not entitled to correction of his records to show he was discharged under honorable conditions.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEA__  ___LVB__  ___RDG_  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.




___James E. Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20070002429
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/09/18
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800626
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
Conduct Triable by Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.