IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080006785 


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 record be corrected to show he was medically discharged.  

2.  The applicant states, in effect, that he suffered from a nervous condition during his military service and had told the doctors prior to going absent without leave (AWOL).  

3.  The applicant provides his separation document (DD Form 214) in support of his application.  

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 were not made available to the Board for review.  However, the DD Form 214 provided by the applicant was considered sufficient documentation upon which the Board could conduct a fair and impartial review of the case.  

3.  The applicant's separation document shows he enlisted in the Regular Army and entered active duty on 2 September 1969, and that he was trained in and awarded military occupational specialty (MOS) 76A (Supply Clerk).

4.  The applicant's DD Form 214 also shows he served in the Republic of Vietnam (RVN) from 28 February 1970 through 8 March 1971, and that he completed a total of 1 year, 8 months, and 9 days of creditable active military service.  It further confirms that he accrued 197 days of time lost.  

5.  The applicant's separation document confirms that on 23 November 1971, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, and that he received an undesirable discharge (UD). 
The applicant authenticated this document with his signature on the date of his discharge.  

6.  There are no medical records on file or provided by the applicant that indicate he suffered from a disabling medical condition that would have support his separation processing through medical channels at the time of his discharge.  

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 contains the policy for discharge for the good of the service in lieu of trial by court-martial.  It states, 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 is normally considered appropriate for members separated under this provision of the regulation; however, at the time of the applicant's discharge, the issue of an UD was authorized.  

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge based on a nervous condition he was suffering from during his military service was carefully considered.  However, there is insufficient evidence to support this claim.   

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214, which the applicant authenticated with his signature on the date of his discharge, which identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service. In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance, and there is no evidence on file or provided by the applicant that shows he was suffering from a disabling medical condition that would have warranted his processing through the Army's PDES at the time of his discharge.  As a result, absent any supporting medical evidence, there is an insufficient evidentiary basis to support granting the requested relief.  

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 this requirement.


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)                                         AR20080006785



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ABCMR Record of Proceedings (cont)                                         AR20080006785


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