IN THE CASE OF:	

		BOARD DATE:	
		DOCKET NUMBER:  AR20080001517 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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 honorable.

2.  The applicant states, in effect, that he feels the discharge to be unjust due to physical impairment at the time of his enlistment.

3.  In support of his request, the applicant provided a partial copy of his Standard Form (SF) 93, Report of Medical History; a partial copy of an SF 88, Report of Medical Examination; and a copy of an Audiogram.

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 evidence shows the applicant enlisted in the Regular Army on 11 June 1980.  While undergoing one station unit training at Fort Bliss, Texas, the applicant departed from his unit in an absent without leave status.  The applicant was not awarded a military occupational specialty.

3.  The applicant entered the Army in the rank and pay grade, Private, E-1.  This would be the highest rank and pay grade he would attain while he served on active duty.  The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition.

4.  On 20 May 1980, the applicant underwent an entrance physical examination.  His disqualifying defects were listed as Items 52 (his weight) and 57 (his blood pressure).  At the time of his physical examination, the applicant weighed 221 pounds and his blood pressure was 150 over 96.  His physical profile serial was 
P-3, U-1, L-1, H-2, E-1, and S-1.  A notation was also made in Item 74 (Summary of Defects and Diagnoses), of the SF 88, that indicated the applicant had defective hearing; however, this defect was not entered in the appropriate space on the SF 88.  This entry was, it appears, later lined through to indicate it was not to be considered further.  The report of medical examination indicates that the applicant was not qualified for enlistment in the Army.  He was apparently instructed to lose three pounds and return for another examination in two weeks.

5.  On 11 June 1980, the applicant was accepted for enlistment.  A notation was made to show that there were no disqualifying defects or communicable diseases.  On this date, the applicant's height was shown to be 70 inches and his weight was shown to be 218 pounds.

6.  Item 21 (Time Lost), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows he departed in an absent without leave status on 1 July 1980 and remained in this status until 10 December 1980.

7.  There is no indication in the applicant's service personnel records that he had been referred to either a medical evaluation board or a physical evaluation board for defective hearing or for any other medical reason while he was on active duty.

8.  All the documents related to the applicant's discharge are not on file in the applicant's service personnel record; however, a DD Form 458, Charge Sheet, was completed and court-martial charges were brought against the applicant for his absence without leave which began on 1 July 1980.

9.  On 16 December 1980, the applicant voluntarily requested discharge for the good of the service under the provision of Army Regulation 635-200, Chapter 10. In his request for voluntary discharge, the applicant stated that he was making his request of his own free will and had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to the request for discharge.

10.  In his request for discharge, the applicant indicated that he had consulted with counsel who had fully advised him of his rights under the Uniform Code of Military Justice.  He further stated that he understood that if his request for discharge were accepted, he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate.

11.  The applicant acknowledged that he understood he could be denied some or all Army benefits administered by the Veterans Administration [now known as 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 also understood he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

12.  The applicant was provided the opportunity to submit any statement he desired in his own behalf which would accompany his request for discharge.  The applicant declined to submit a statement in his own behalf.

13.  The applicant was discharged under other than honorable conditions, in the rank and pay grade, Private, E-1, on 27 January 1981, under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial.  On the date of his discharge, the applicant had 2 months and 4 days of service.  The applicant's DD Form 214, Certificate of Release or Discharge from Active Duty, shows his lost time as being from 1 July 1980 through 10 December 1980.

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

15.  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.

16.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

17.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

18.  Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

19.  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 separation specifically allows such characterization.

20.  AR 635-200, paragraph 3-7a, 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, 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.  All the documents related to the applicant's discharge are not on file in the applicant's service personnel record; however, a DD Form 458, Charge Sheet, was completed and court-martial charges were brought against the applicant for his absence without leave which began on 1 July 1980 and ended on
10 December 1980.
2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The evidence shows the applicant was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.

3.  The evidence also shows that after consulting with counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, to avoid trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  There is no indication that the request was made under coercion or duress.

4.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The reason for discharge and the characterization of service are both proper and equitable.  The quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to either a general or an honorable discharge.

5.  The quality of the applicant’s service was considered.  The highest rank and pay grade he achieved while he was in service was, Private, E-1.  The applicant did not remain in his unit sufficiently long to have completed his training and to have been awarded a military occupational specialty.  The applicant's record contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his under other than honorable conditions discharge. The applicant's service was determined not to be sufficiently meritorious to warrant an upgrade of his discharge to either a general or a fully honorable discharge.

6.  There is no evidence, and the applicant provided none, to show that he had been referred to either a medical or to a physical evaluation board for consideration for discharge due to medical disability.  Even if he had been referred to a medical or to a physical evaluation board, the applicant would not have been eligible to complete the process, in accordance with applicable regulation, in view of the fact that he departed from his unit in an absent without leave status.

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

8.  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.

9.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his undesirable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080001517



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ABCMR Record of Proceedings (cont)                                         AR20080001517



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