IN THE CASE OF:	  

	BOARD DATE:	 
	DOCKET NUMBER:  AR20080005576 


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, he believes his discharge should be upgraded because he was told to seek outside medical help for injuries he sustained to his left foot (Morton's Neuroma).  He also states, in effect, that his injury was sustained during his service and could not be corrected by pain medicine or nuclear medicine that he received at a Fort Ord hospital.  He further states that he did as he was told to have an operation to remove the nerves from his foot.  He was also told that because he took time to seek his own medical attention, his discharge would become fully honorable after 3 months.

3.  In support of his application, the applicant provides a copy of his DD Form 214 and medical information pertaining to Morton's Neuroma.

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 records show he enlisted in the Regular Army, in pay grade E-1, on 25 September 1984, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 11B, Infantryman.  He was advanced to pay grade E-3, on 29 May 1986. 

3.  The applicant's service military records show he was treated for left foot pain on 17 January and 4 March 1986.  He was referred to and seen in Nuclear Medicine on 28 March 1986 and seen in the Podiatry Clinic on 14 April 1986.  He was again treated for left foot pain on 1 July 1986 and referred for a follow-up appointment with the Podiatry Clinic.  

4.  The applicant was reported absent without leave (AWOL) on 25 July 1986 and returned to duty on 1 September 1986.  He was again reported AWOL on 4 September 1986 and returned to duty on 28 September 1986.

5.  The applicant was again reported AWOL on 21 October 1986 and dropped from the rolls of his organization on 20 November 1986.  He was apprehended by military authorities and returned to military control on 23 March 1987.  

6.  On 26 March 1987, a Charge Sheet (DD Form 458) was prepared by the Commander, Processing Company, United States Army Personnel Control Facility, Fort Ord, California.  The applicant was charged with one specification of AWOL from 21 October 1986 until apprehended on 23 March 1987.  

7.  On 26 March 1987, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.   He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, and as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veteran's Administration.  He waived his rights and elected not to submit a statement in his own behalf.


8.  On 13 July 1987, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

9.  The applicant was discharged on 10 September 1987, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial.  He was credited with 2 years, 4 months, and 12 days total active service.  He was also credited with lost time from 25 July to 1 September 1986, 4 September to 28 September 1986, and from 21 October 1986 to 22 March 1987, due to AWOL.

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

11.  The applicant submits medical information pertaining to Morton's Neuroma, an enlarged nerve that usually occurs in the third interspace, which is between the third and fourth toes.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge was normally considered appropriate.  

13.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant’s contentions have been noted; however, based on the available evidence, there is no basis for the upgrade of his discharge to a fully honorable discharge.  He has submitted no evidence to substantiate his claim that his platoon sergeant told him to seek medical care outside the Army.  It appears that the applicant resorted to several lengthy periods of AWOL as a means of addressing any problems he may have been having.  The evidence also shows he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a special court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge or even a general, under honorable conditions, discharge.  The applicant has submitted neither probative evidence nor a convincing argument to show that he is now deserving of a fully honorable discharge. 

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to being discharged.  The separation authority could have directed a general discharge if such a discharge were merited by the Soldier's overall record; however, the evidence shows the separation authority decided he did not merit a general discharge after considering the applicant's record and periods of AWOL.

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a fully honorable discharge.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to honorable after 3 months based on medical reasons.  

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

6.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

7.  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 did not submit any evidence that would satisfy this requirement.

8.  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

____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)                                         AR20080005576



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ABCMR Record of Proceedings (cont)                                         AR20080005576


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