IN THE CASE OF:	   

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080006748 


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 that his discharge be upgraded to honorable.

2.  The applicant states that the punishment he got was too severe compared with today’s standards; that he tried to serve and wanted to, but he just could not or was not able to; and he should have been given a medical discharge because he never was medically qualified to serve.

3.  The applicant further states that while in the Army National Guard (ARNG) he became violently ill in 1966.  He had an emergency double bilateral hernia operation, and he had an adverse reaction to the anesthetic.  It took him several months to recover, and he could not attend the unit’s monthly meetings.  His girlfriend at the time notified his sergeant that he had had surgery and that it could be some time before he could resume his obligation to the ARNG.  When he was able to return, his sergeant informed him that he did not get the message until it was much too late.  The paperwork for him to report to Fort Jackson, SC, had already been filed.  

4.  The applicant states that he, the oldest of nine children, had to leave home and he could no longer help his family.  He struggled on and off in the Army until he finally went absent without leave (AWOL).  He knew that was not the correct way to handle his problems, but back then he could not see any other way.  He felt his sergeant back in West Virginia had wronged him.  

5.  The applicant states that his hospital was in such a rural part of the State and it was so small.  They have had several floods over the years and many, many records have been lost.

6.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), one for the period ending 18 February 1967 and one for the period ending 3 May 1974; a letter, dated 18 February 2008, requesting his medical records; a message slip; and a letter, dated             2 March 2008, to the Army Review Boards Agency Support Division, St. Louis, MO.

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 ARNG on 13 March 1965.  He entered active duty for training on 10 October 1966 and was honorably released from active duty for training on 18 February 1967.  He was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 12 October 1968, the applicant signed a statement acknowledging that he had been oriented on and understood the satisfactory participation requirements and enforcement provisions of Army Regulation 135-91.

4.  On 19 February 1970, the applicant’s unit requested that he be ordered to active duty (as a result of not attending unit drills).  The request was returned without action due to a number of deficiencies and/or missing documents.

5.  On 19 February 1970, the applicant was issued a warning letter for unsatisfactory drill attendance.  He was charged with four unexcused absences, 

on 7 and 8 February 1970.  He was warned that after the fifth unexcused absence in a one-year period he must be reported for order to active duty.  He signed the certified mail receipt as receiving this letter on 23 February 1970.

6.  On 9 March 1970, the applicant was issued a warning letter for unsatisfactory drill attendance.  He was charged with one unexcused absence, on 7 March 1970.  He was warned that after the fifth unexcused absence in a one-year period he must be reported for order to active duty.  He signed the certified mail receipt as receiving this letter on 10 March 1970.

7.  On 11 May 1970, the applicant was informed that his unit had requested that he be ordered to active duty.  There is no signature on the certified mail receipt.  

8.  The applicant’s records contained a Discharge Summary, date of discharge 13 May 1970.  The Summary stated the applicant developed bilateral inguinal pain after lifting heavy equipment while at work on 27 April 1970.  On 7 May 1970, he underwent bilateral inguinal hernia repair.

9.  The applicant’s records contained a letter from Doctors Memorial Hospital, Welch, WV, dated 14 August 1970.  The letter stated the applicant had his hernia repaired on 7 May 1970.  He was seen in the Surgical Clinic for follow up on       16 May 1970.  He was told to return for a final checkup on 16 June 1970, but he did not come back anymore.  He was seen in the hospital and treated for prostatitis on 28 July 1970.  He came back on 14 August 1970 and was apparently symptom-free.

10.  On 13 May 1970, the applicant was notified that a request had been submitted to order him to active duty for a period of 17 months and 17 days.  He was informed he had the right to appeal the order to active duty.  Any appeal must have been made in writing or in person within 15 days after receipt of the letter.

11.  On orders dated 1 June 1970, the applicant was ordered to active duty effective 10 July 1970 for 17 months and 17 days.  

12.  On 8 August 1970, the applicant wrote to The Adjutant General, West Virginia, stating that he (just) received his letter regarding the Army.  He stated the reason he did not know about that (being ordered to active duty) was because he did not get it in time and he was in the hospital undergoing a double hernia operation.  He was still under the doctor’s care, and he could not go (into 

the Army) because one side was still injured.  He appealed for a medical discharge.  He got hurt in the mines and could not lift anything at all that was heavy.  

13.  On 9 August 1970, The Adjutant General, West Virginia, informed the applicant he had been a member of the Active Army since 10 July 1970.  

14.  On 2 September 1970, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from on or about   10 July to on or about 18 August 1970.

15.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 18 November through 7 December 1970.

16.  On 7 March 1974, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 19 January to on or about       26 January 1971; with being AWOL from on or about 28 January 1971 to on or about 21 August 1973; and with being AWOL from on or about 3 September 1973 to on or about 27 February 1974.

17.  On 5 March 1974, the applicant completed a separation physical and was found qualified for separation.

18.  On or about 1 April 1974, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of 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.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.

19.  The applicant stated that he wanted to get out of the Army because he did not want to be in the Army in the first place.  He joined the ARNG in West Virginia to serve his 6 years.  He still went to work in the coal mines, but he got   a double bilateral hernia.  He was ordered to active duty for missing meetings.  He only had 9 months to serve because he had already served 5 years and        4 months in the ARNG.  He stayed for three months, and then he went AWOL.  He turned himself in at the request of the chaplain.  He went AWOL again because he wanted out of the Army altogether, because they would not listen to him on his medical discharge, and because his wife depended on him for support.  He and his wife lived in a motel room in Louisville, KY.  They did not have much to eat, but they survived off crackers or candy or anything they could buy for 15 cents because they had to save money.

20.  On 17 April 1974, the appropriate authority approved the applicant’s request and directed he be furnished an Undesirable Discharge Certificate.

21.  On 3 May 1974, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 6 months and 29 days of creditable active service during the period under review and had 1,182 days of lost time (782 days of those lost subsequent to his normal expiration of term of service).

22.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), in effect at the time, stated that each newly-assigned enlisted member would be advised of the principal provisions of chapter 4 (Absences).  Emphasis would be placed on the member’s responsibility to keep his commander informed of an address where mail would reach him, the service obligation, participation requirements, and the consequences of failure to participate satisfactorily.  In addition, each enlisted member would be required to furnish the name and address of a person who would always know his address.  The regulation stated that absences could be excused when sickness, injury, or some other circumstances beyond the Soldier's control caused the absence.  The unit commander could require evidence, such as certification from a doctor or medical officer, to substantiate the absence.

23.  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.  A discharge under other than honorable conditions is normally considered appropriate.  


24.  Army Regulation 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.  

25.  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.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, 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 unless the general court-martial convening authority finds that 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 that other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.  

2.  The applicant had contended that he was hospitalized for a double bilateral hernia in 1966.  It is presumed that he meant 1969, not 1966.  In any case, his records contained a Discharge Summary that stated his hernia operation was performed on 7 May 1970 and that indicated he developed the hernia on 27 April 1970.

3.  The available evidence does not explain the applicant’s unexcused absences in February and March 1970.  It appears he also had earlier unexcused absences that were not properly documented by his command.

4.  In October 1968, the applicant signed a statement acknowledging that he had been oriented on and understood the satisfactory participation requirements and enforcement provisions of Army Regulation 135-91.  That regulation required that any time he missed unit training through no fault of his own that he obtain an excused absence.  
5.  In February and in March 1970, the applicant was issued warning letters for unsatisfactory drill attendance.  He was warned that after the fifth unexcused absence in a one-year period he must be reported for order to active duty.  He signed the certified mail receipts as receiving those letters on 23 February 1970 and on 10 March 1970, respectively.  It was his responsibility, not his girlfriend’s, to contact his unit and inform them of his status.  

6.  Because there is insufficient evidence to show the applicant made any reasonable efforts to contact his unit and inform them of his status, or to explain his unexcused absences in February and March 1970, it appears he was properly ordered to active duty.  

7.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

8.  The applicant admitted in his statement with his request for discharge that he wanted to get out of the Army because he did not want to be in the (Active) Army in the first place.  He was AWOL for 1,182 days.  A discharge under other than honorable conditions is normally considered appropriate when the authority for separation is Army Regulation 635-200, chapter 10.  Considering the length of his AWOL, the characterization of the applicant’s service as under other than honorable conditions that he was given was and still is appropriate. 

9.  Because the applicant was separated under a regulatory provision which authorized a characterization of service of under other than honorable conditions, and there is insufficient evidence to show that he had a disability that was the cause or a substantial contributing cause of the misconduct that resulted in his discharge under other than honorable conditions, it does not appear that he was eligible for a medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.




      _______ _ xxxx_____   ___
               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)                                         AR20080006748





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