RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20070007210 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Chester A. Damian

Member

Mr. Edward Montgomery

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 that his undesirable discharge be changed to a medical discharge.

2.  The applicant states, in effect, that he injured his back while in basic training at Fort Ord, California.  After basic training he was transferred to Fort Leonard Wood, Missouri for leadership training.  He went on sick call but did not receive help with his medical condition.  After being x-rayed and checked over by the orthopedic department, he was told by his command there was nothing the Army could do for his back and it would be better if he went home and waited for his medical discharge.

3.  The applicant continues that after three years he went back to Fort Leonard Wood and told them that he had not received his medical discharge.  After returning a few weeks later he was detained by military authorities and offered a discharge for the good of the service in lieu of a court-martial.  At that time, he had no idea of the consequences of that type of discharge.  

4.  The applicant continues, "The DD 214 provided shows only 3 months and 
8 days net service, however in block 26a it shows I went AWOL as of November 16, 1971.  How is it possible that I enlisted on January 2, 1969 then run as AWOL November 16, 1971, and only have 3 months and 8 days of net service.  I had more service, I had gone to and completed combat engineer school, I was in Leadership School when I was told to go home and await my medical discharge."

5.  The applicant provides no additional documentation in support of this case.

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 enlisted in the Regular Army for a 3-year term service on 
2 January 1969.  He successfully completed basic training and did not successfully complete advanced individual training.  

3.  The applicant's personnel records contain a Standard Form 600 (Chronological Record of Medical Care).  This medical record shows that the applicant received medical treatment for back pain and a cold during the period 
5 February 1969 through 11 March 1969.  He was returned to duty and instructed to perform back exercises; take warm soaks with wintergreen; and was given a 48 hour temporary profile. 

4.  A DD Form 458 (Charge Sheet), dated 31 October 1973, shows charges were preferred against the applicant for being absent without leave (AWOL) for the period 16 March 1969 through 23 October 1973.

5.  On 5 November 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

6.  The applicant indicated in his request that he understood he could be discharged 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 Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

7.  The applicant submitted a statement on his own behalf that stated, in effect, that he should be discharged from the Army because he had a wife and four children to support.  He had a good job and did not want to lose it.  He could not give a good reason why he went AWOL.  He paid for his mistake running and living like he had for the last four and a half years.  His family and job were very important to him and that this has been very hard on his wife.

8.  A Standard Form 93 (Report of Medical History), dated 7 November 1973, shows in item 10 that he indicated that he wore a brace or back support.








9.  A Standard Form 88 (Report of Medical Examination) dated 7 November 1973, indicates that the applicant was qualified for separation and further shows that his physical profile was 111111.

10.  On 12 November 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an undesirable discharge and be reduced to the lowest enlisted grade. On 16 November 1973, the applicant was discharged from active duty and was issued an undesirable discharge with a character of service of under other than honorable conditions after completing a total of 3months and 8 days of creditable active service with 1,688 days of lost time due to AWOL.

11.  Item 26 (Non-Pay Periods Time Lost (Preceding Two Years)) of the applicant's DD Form 214 shows the entry "16NOV71-22OCT73," and item 
30 (Remarks) shows that the applicant was AWOL for the period 16 March 
1969 through 1 January 1972 with 1,022 days lost prior to his expiration of term of service (ETS) and 2 January 1972 through 22 October 1973 with 660 days lost past his ETS. 

12.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate. 

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states 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 of under other than honorable conditions. An exception may be made by the general court-martial convening authority if the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be changed to a medical discharge and that he was told by his command to go home and wait for his medical discharge.  There is no evidence in the applicant's records and he has not submitted sufficient evidence to show his commander or other proper authority determined he could not perform his duties at the time of the misconduct which led to his discharge.

2.  There is no medical evidence of record that shows the applicant had any injury or medical problem prior to his discharge on 16 November 1973.  Prior to his separation records show that his physical profile was 111111.

3.  The applicant further contends that in item 26a of his DD Form 214, it shows he went AWOL 16 November 1971 and how was it possible when he enlisted on January 2, 1969.  Item 26 of the applicant's 214 is correct.  It shows the last two years of time lost prior to him being separated on 16 November 1973 which was 
16 November 1971 through 22 October 1973.  Item 30 of the applicant's DD Form 214 shows his entire period of AWOL for the period 16 March 1969 through 
22 October 1973.  Therefore, his DD Form 214 correctly shows his AWOL period. 

4.   The applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RTD__  __CAD __  __EM ___  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.




___Richard T. Dunbar__
          CHAIRPERSON




INDEX

CASE ID
AR20070007210
SUFFIX

RECON

DATE BOARDED
27 SEPTEMBER 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.7900.0000
2.
108.0000.0000
3.

4.

5.

6.