IN THE CASE OF:	

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080009224 


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, reconsideration of his earlier petition for an upgrade of his undesirable discharge (UD). 

2.  The applicant states, in effect, that his UD should be upgraded based on the medical conditions he suffered from at the time of his discharge from the Army.

3.  The applicant provides a copy of 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM’s case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC91-07178 on 11 September 1991.

3.  During the original deliberations the ABCMR determined that the applicant did not present and his records did not contain sufficient evidence to support granting him an honorable discharge (HD).  It was only after considering all of the evidence presented before it, did the ABCMR consider its 3-year statute of limitations and deny the applicant’s request based on his failure to timely file his appeal.

4.  The applicant’s record contains a Report of Medical Examination (Standard Form 88), which shows that on 26 December 1969, he underwent a complete medical examination that resulted in a determination that he was qualified for enlistment, and on 29 December 1969, the applicant enlisted in the Regular Army and entered active duty.  

5.  During his initial training, on 26 February 1970, the applicant accepted 
non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 23 through 25 February 1970.  

6.  The applicant's Enlisted Qualification Record (DA Form 20) confirms, in Item 33 (Appointments and Reductions), that he entered the Army in the rank of private (PVT/E-1) on 29 December 1969, and that this is the highest rank he held while serving on active duty.  Item 44 (Time Lost) shows he accrued 534 days of lost time during six periods of absence due to AWOL and confinement between 23 February 1970 and 3 November 1971.

7.  On 26 August 1971, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the UCMJ by being AWOL from on or about 11 April 1970 through on or about 19 August 1971.

8.  On 8 September 1970, the applicant's unit commander initiated separation action against him under the provisions of Section VII, paragraph 45b, 
Army Regulation 635-206.  The commander cited the applicant's unauthorized absence in excess of 1 year as his basis for the action.

9.  On 6 October 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  
10.  Subsequent to receiving legal counsel, the applicant elected to waive his right to have his case considered by an administrative separation board and representation by counsel.  He submitted a statement in which he acknowledged his right to participate in an amnesty program, drug rehabilitation program if he were identified to be a drug experimenter, user, or addict and he also waived these rights.  

11.  A Standard Form 88, dated 28 September 1971, which documented the applicant's separation physical examination, contained the entry “NONE” in Item 74 (Summary of Defects and Diagnosis) and shows the applicant was found qualified for retention/separation by competent medical authority.  

12.  On 19 October 1971, the separation authority approved the applicant’s separation and directed that he receive an UD.  On 3 November 1971, the applicant was discharged accordingly.  

13.  The DD Form 214 issued to the applicant on the date of his discharge confirms that he had completed a total of 5 months and 11 days of creditable active military service, and that he accrued a total of 534 days of time lost due to AWOL and confinement.  

14.  There is no evidence of record to show that the applicant submitted a request for an upgrade of his discharge to the Army Discharge Review Board (ADRB) within that board’s 15-year statute of limitations.  

15.  Army Regulation 635-206, in effect at the time, prescribed the procedures for the processing of enlisted personnel for misconduct, by reason of fraudulent entry into the service, conviction by a civil court, and AWOL or desertion.  Section VII provided for the separation of members for desertion or AWOL when their unauthorized absence had continued for one year or more.  Members separated under this provision normally received an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UD should be changed because of his medical conditions has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant accrued 534 days of time lost due to five separate periods of AWOL and 1 period of confinement during his active duty tenure, and that he was processed for separation on this basis.  


3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further shows that prior to his discharge, the applicant underwent a complete physical examination during which no disabling medical conditions were noted, and which confirms he was determined to be fully qualified for retention/separation by competent medical authority at the time.  As a result, there is no evidence of record corroborating the applicant's claim that he suffered from medical conditions at the time of his discharge that should support an upgrade of his discharge.  Therefore, there is insufficient evidence to support granting the requested relief or amendment of the original Board decision in this case. 

4.  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 to amend the decision of the ABCMR set forth in Docket Number AC91-07178, dated 11 September 1991.



      ________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)                                         AR20080009224



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ABCMR Record of Proceedings (cont)                                         AR20080009224


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