IN THE CASE OF:	

		BOARD DATE:	19 August 2008  

		DOCKET NUMBER:  AR20080010299 


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, in effect, requests reconsideration of the Army Board for Correction of Military Records’ (ABCMR) denial of his request to upgrade his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, he wants to clear his military record in that incorrect information has been documented in his record.  He further states he wants to clear up information on his initial discharge which should have been deemed a medical discharge.  He also states he should be upgraded to a Chapter 5 (Convenience of the Government) (Army Regulation 635-200).

3.  The applicant provides a copy of ABCMR Docket Number AR20070002941, dated 21 August 2007 and 21 pages from his military service records in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070002941, on 21 August 2007.

2.  In the original findings, the ABCMR determined the applicant's request for discharge under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations) was administratively correct and in conformance with 
applicable regulations.  The ABCMR further determined that the applicant failed to submit evidence that showed to the satisfaction of the Board, or that it  otherwise satisfactorily appeared, the record was in error or unjust.  

3.  The applicant has not submitted any evidence that was not previously in his military service records and previously reviewed.  However, he has submitted new argument which requires that his case be reconsidered by the ABCMR.

4.  The applicant argues that he was involved in a car accident which left him disabled due to a broken neck and the accident report was very incorrect and had been changed.  He also argues his doctor had requested he be medically discharged and he should have been processed out of the Army in December 1976.  He further argues that at the time of his being accused of being absent without leave (AWOL) he was in the stockade.  He further argues his commander considered him a burden to the unit and wanted him discharged.

5.  On 29 May 1976, the applicant was assigned to Battery A, 1st Battalion, 73rd Field Artillery at Fort Bragg, North Carolina.

6.  The applicant had the following three periods of AWOL while assigned to the 73rd Field Artillery:

	a.  from 18 August to 2 September 1976;

	b.  from 8 September to 14 September 1976 (dropped from the rolls on
8 September 1976); and

	c.  from 17 January to 18 February 1977 (dropped from the rolls on
15 February 1977) (apprehended by military police personnel from Fort Bragg).

7.  A DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status), dated 19 October 1976, reported the applicant suffered a neck injury in an automobile accident on 12 September 1976.  This report initially found the applicant's injury to be not in line of duty but not due to own misconduct.  However, the commander disapproved the initial finding and found that the applicant had been dropped from the rolls of his unit due to being AWOL since 
8 September 1976.  The commander determined this was sufficient evidence for a finding of not in the line of duty - due to own misconduct.

8.  A Clinical Record, Narrative Summary, dated 21 January 197712 November 1976, reported the applicant's history as having been involved in a car accident and sustained an injury to his neck.  He was diagnosed with a C1 arch fracture 

and on 29 September 1976 he was placed in a Halo brace.  According to the “Disposition” section, the applicant was to be followed up in physical therapy.  The doctor noted the applicant may require a Medical [Evaluation] Board (MEBD) discharge from the Army.

9.  The records contain a Disposition Form, dated 3 December 1976, that indicates the applicant was scheduled for a separation physical under the provisions of Chapter 5 (Convenience of the Government) (Army Regulation 
635-200).  However, there is no other documentation in the official records showing the applicant was being processed for discharge under the provisions of Chapter 5.

10.  A DD Form 458 (Charge Sheet) shows he was placed in pre-trial confinement on 18 February 1977 (the date of his apprehension from being AWOL).

11.  On 24 February 1977, the applicant submitted a statement with his request for discharge.  The applicant stated he did not want to take part in any Army program to help better himself.  He further stated that because of his personal and family problems at home (father had been ill) he wished to be discharged from the Army.  He further stated his personal life had interfered with his career as an enlisted Soldier.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, provided, in pertinent part, that a disability resulting from a Soldier's intentional misconduct or willful negligence or was incurred during a period of unauthorized absence was not eligible to receive military retirement or severance pay through the Army Physical Disability Evaluation System (PDES).

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, provided, in pertinent part, that a Soldier charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under 
investigation for an offense chargeable under the UCMJ, which could result in dismissal or a punitive discharge, could not be referred for, or continue, disability processing unless the investigation ends without charges, the charges are dismissed, or the charge is referred for trial to a court-martial that cannot adjudge such a sentence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends a car accident left him disabled due to a broken neck, his doctor recommended a medical discharge, and that he should have been processed out of the Army in December 1976 with a medical discharge.

2.  The Narrative Summary does not indicate the applicant did not meet retention standards because of his injury to his neck.  There are no entries in the record showing the applicant's doctor requested a medical discharge for the applicant.  

3.  The final line of duty determination for the applicant's neck injury resulted in a finding of not in the line of duty - due to own misconduct.  This was a result of the fact that the applicant was in an AWOL status at the time of the automobile accident.  Therefore, the applicant was not eligible to be processed through the Army’s PDES; therefore, he could not have received a medical discharge based on his neck injury.  

4.  Other than the Disposition Form showing the applicant was scheduled for a separation physical, there is no evidence of his being processed for discharge in December 1976.  However, if he was being processed for separation under another chapter, the processing would have ceased at the time he again went AWOL on 17 January 1977.

5.  The applicant contends he was in the stockade during the last period that he was accused of being AWOL.  However, the applicant has provided no evidence to support this contention.  The evidence shows the applicant was not placed in confinement until 18 February 1977 after being apprehended by the military police.  

6.  The applicant contends his commander considered him a burden to the unit and wanted him discharged.  However, the applicant's discharge was based on his own request for discharge in order to escape trial by court-martial for his latest period of AWOL and not whether or not he was a burden to his unit.


7.  At the time the applicant requested a discharge under the provisions of Chapter 10 of Army Regulation 635-200 he made no mention of having medical problems.  His only concern was to be discharged due to personal and family problems.  

8.  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 that 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 AR20070002941, dated 21 August 2007.



      __________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)                                         AR20080010299



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ABCMR Record of Proceedings (cont)                                         AR20080010299



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