IN THE CASE OF:	  

		BOARD DATE:	         2 October 2008

		DOCKET NUMBER:  AR20080011403 


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 changed to a general discharge or a medical discharge.  The applicant also request that his rank be changed to sergeant/pay grade E-5.

2.  The applicant states, in effect, that he was discharged from the service while suffering from a medical condition.  The applicant continues that he was a sergeant/pay grade E-5 not a private/pay grade E-1. 

3.  The applicant provides no additional documentary evidence in support of this 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 service personnel record is incomplete; however, there are sufficient records to make a fair and impartial decision.

3.  The applicant's record shows he had prior service in the United States Marine Corp (USMC) as a Bio-Combat Engineer in the rank of corporal/pay grade 
E-4 during the period 7 October 1969 through 24 June 1971.  The applicant's record shows that he was honorably discharged on 9 April 1974 from the USMC.

4.  The applicant's record shows he entered the Regular Army on 10 September 1974 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 63B10 (Wheel Vehicle Mechanic).  The highest rank the applicant held during this enlistment was sergeant/pay grade E-5.

5.  On 23 June 1976, the applicant was placed on temporary profile for removal of a rod in his left femur he was given a physical profile of “3T.”  His assignment limitations were listed as no assignments requiring crawling, stooping, running, or jumping.  Additional limitations show no marching in excess of 1/4 miles, no prolonged standing in excess of 30 minutes, and no strenuous physical activity.  The applicant's condition was listed as temporary not to exceed 60 days and he was released back to duty by the Department of the United States Walson Army Hospital, Fort Dix, New Jersey.

6.  The applicant's record shows that on 29 June 1976, he was listed as being absent without leave authority (AWOL) until 31 January 1977.  

7.  On 1 February 1977 the applicant surrendered to the military authorities.  The applicant was interviewed upon his return to duty.  A summary of the interview shows the applicant listed the reason for going AWOL was that he was being sent to Germany while still recovering from a broken leg.  The applicant continues that his broken leg occurred on 15 January 1975 while stationed at Fort Meade, Maryland.  The applicant also provided the military authorities with a letter from his physician who was a specialist in Physical Medicine and Rehabilitation at the Divine Providence Hospital, Williamsport, Pennsylvania.  The letter indicates that the applicant’s chief complaint was severe pain in his left hip area.  The physician adds that the applicant's fracture of his left femur occurred in an auto accident in January 1975 and the applicant was fixed with an intramedullary nail which was removed in May 1976.  The doctor continues that the patient stated that since that time he had severe pain in the left hip and it had impaired his duties in the Army.  In summary the doctor added that the applicant has had steroid injections with no relief.

8.  A Standard Form 93 (Report of Medical History), dated 1 February 1977, shows that the applicant was in good health.  The form shows that he had an operation on his leg at the Fort Meade Army Hospital in January 1975.  The form did not list any outstanding medical conditions which required treatment and shows he was considered qualified for separation.

9.  On 2 February 1977, charges were preferred against the applicant for being AWOL during the period 29 June 1976 through 31 January 1977.

10.  On 7 February 1977, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if an under other than honorable conditions discharge was issued.  

11.  On 8 February 1977, the unit commander recommended that the applicant be discharged from the U.S. Army with a general discharge and the intermediate commander concurred with the recommendation for separation; however he recommended an under other than honorable conditions discharge.  

12.  On 15 February 1977, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  Headquarters, US Army Training Center, Fort Dix, New Jersey Orders Number 055-76, dated 24 February 1977 shows that the applicant was reduced from sergeant/pay grade E-5 to private/pay grade E-1, effective 15 February 1977.  The orders also show the applicant was assigned to the US Army Transfer Point, Fort Dix, New Jersey on 25 February 1977; he was issued an Under Other Than Honorable Conditions Discharge Certificate; and placed in an excess leave status, in absentia.

14.  The applicant's DD Form 214 (Report of Separation from Active Duty) show that on 3 March 1977, he was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an under other than honorable conditions discharge.  He had completed 1 year, 10 months, and 22 days of active military service, 217 days of lost time due to being AWOL and 29 days of excess leave.


15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 
15 year statute of limitation.

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

17.  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.  

18.  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.

19.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

20.  Army Regulation 635-40, paragraph 4-3 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to a medical or general discharge was carefully considered and determined to be without merit.  The applicant also contends that his rank should be changed to sergeant/pay grade E-5.
2.  The applicant's service record shows that charges were preferred against him for being AWOL during the period 29 June 1976 through 31 January 1977 and that he voluntarily requested discharge in lieu of a trial by court-martial.

3.  Discharge under the provisions of Chapter 10 of Army Regulation 635-200 requires an admission of guilt to the offenses charged and usually results in a discharge under other than honorable conditions.  

4.  The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  Records show that at the time of his separation, the applicant underwent a physical which determined that he had no medical conditions that would preclude separation.  Absent evidence to show that the applicant had a medically disqualifying condition at the time of his discharge, there is no basis to grant the relief requested.

6.  Orders show that the applicant was reduced to private/pay grade E-1 as directed by the separating authority based on his request to be discharged in lieu of trial by court-martial.  As a result, the applicant's rank on his separation document is correct as currently constituted.

7.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, 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)                                         AR20080011403



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ABCMR Record of Proceedings (cont)                                         AR20080011403



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