IN THE CASE OF:	   

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080011900 


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 undesirable discharge be upgraded to honorable or changed to a medical discharge.

2.  The applicant states, in effect, that he went absent without leave (AWOL) because he was denied convalescent leave.  He states that when he enlisted he was healthy; however, he caught pneumonia two times and was refused convalescent leave after his release from the hospital the second time.  He indicates that when he returned to his unit he was threatened with bodily harm for going AWOL, so he went AWOL again.  When he returned the second time, he was court-martialed.    

3.  The applicant also states that his discharge should be changed to a medical discharge because he caught pneumonia and was refused convalescent leave which forced him to break the rules and go AWOL.  He contends that as a result of the pneumonia his physical abilities have been hindered in the civilian world and to date his health has been compromised.   

4.  The applicant provides no additional evidence 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 enlisted on 18 January 1971 for a period of 3 years.  He successfully completed basic combat training.   

3.  On 4 May 1971, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  The applicant went AWOL on 22 May 1971 and returned to military control on 13 July 1971.  

5.  The applicant went AWOL again on 20 July 1971 and returned to military control on 28 October 1971.  

6.  On 3 November 1971, the applicant underwent a separation physical examination and was found qualified for separation.  Item 28 (Lungs and Chest) on his Standard Form 88 (Report of Medical Examination) is rated normal.  His Standard Form 93 (Report of Medical History), dated 8 November 1971, shows he reported that he had pneumonia three times.

7.  On 22 November 1971, charges were preferred against the applicant for the AWOL period (20 July 1971 to 28 October 1971).  

8.  On 24 November 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by 
the Veterans Administration (now known as the Department of Veterans Affairs) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He indicated he would submit a statement in his own behalf.  However, the applicant did not provide a statement within the given time frame.   

9.  On 22 December 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

10.  Accordingly, the applicant was discharged with an undesirable discharge on 
22 February 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 8 months and 5 days of creditable active service with 154 days of lost time due to being AWOL.  

11.  On 28 September 1977, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.

12.  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.  At the time, an undesirable discharge was normally considered appropriate. 

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  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.  

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Pneumonia is not listed as a cause for referral to a Medical Evaluation Board.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that his discharge should be changed to a medical discharge due to pneumonia he acquired during his service, there is no evidence of record to show he was ever medically unfit to perform his duties.  In 
addition, he was found qualified for separation on 3 November 1971 and his lungs and chest were rated normal.  Therefore, there is no basis for a medical discharge.

2.  The applicant’s record of service included one nonjudicial punishment and 154 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
   
4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
 
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)                                         AR20080011900



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ABCMR Record of Proceedings (cont)                                         AR20080011900



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