RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070011182 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome L. Pionk

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 the reason for his discharge be changed to medical.

2.  The applicant provides no statement.  [He indicated that there was an attached statement that he wanted read, but it was not received with his application.]

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214); two Enlisted Evaluation Reports; four award certificates; an Honorable Discharge Certificate; a training certificate; two letters of appreciation; extracts of his military medical records; civilian medical diagnoses of sleep disorder and major depression dated in May and June 2006; and photographs of his foot, ankle, and lower leg.

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.  On 31 October 1978, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 71L1O (Administrative Specialist).  

3.  On 23 June 1979, the applicant was assigned for duty in the Federal Republic of Germany.  On 7 January 1981, the applicant was assigned for duty as an administrative specialist with the 534th Military Police Company, in Panama.

4.  On 1 May 1981, the applicant reenlisted in the Regular Army.  

5.  On 18 November 1983 the applicant was reassigned for duty in the United States.  He traveled to his home in Puerto Rico while enroute to his new assignment at Fort Sheridan, Illinois.  

6.  The applicant subsequently went AWOL (absent without leave).  He was apprehended on 2 March 1984 at Fort Buchanan, Puerto Rico.

7.  On 5 March 1984, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 
28 December 1983 to on or about 2 March 1984.

8.  On 7 March 1984, 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. 

9.  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 to 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. 

10.  The applicant's physical examination for separation is not available for review.   

11.  On 15 October 1984, the separation authority approved the applicant’s request for discharge and directed that he be issued a discharge under other than honorable conditions.  On 26 October 1984, the applicant was discharged accordingly.  He had completed a total of 5 years, 9 months, and 24 days of creditable active military service and accrued 62 days of time lost due to AWOL.

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


13.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days includes a punitive discharge and confinement for 1 year.

15.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  There is no available evidence showing that the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.   Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

4.  The applicant has not provided any evidence or convincing argument showing that the reason for his discharge was in error or unjust.

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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RTD __  __JLP ___  __JRM _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






__    Richard T. Dunbar____
          CHAIRPERSON




INDEX

CASE ID
AR20070011182
SUFFIX

RECON
 
DATE BOARDED
20071220 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19841026
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
145
2.

3.

4.

5.

6.