IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080012320 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge and that his Reentry (RE) code be changed.  In a separate letter to the Board, he additionally requests the Board "...make recommendations to accommodate [his] injury and restore [his] benefits under the VA guidelines...."

2.  The applicant states, in effect, that he received a traumatic injury to his eye, face and nose when a Soldier smashed a beer mug in his face in a public establishment.  He underwent surgery and various therapies for his eye, with limited success.  He was therefore increasingly ostracized by his unit for his inability to participate in routine physical duties because of his injury.  He sought assistance, but was denied and his first sergeant told him "the Army had no room for cry babies."  He contends he received no help in dealing with his severe, disfiguring and debilitating injury.  He believes he deserves an upgrade because he expects to be treated as a disabled person under the Americans with Disabilities Act (ADA).  He also contends that the timeline surrounding the circumstances of his discharge falls within the guidelines of post-traumatic stress disorder (PTSD) that went unrecognized, undiagnosed and untreated by his unit and chain of command.   

3.  The applicant provides a self-authored statement; copies of his service medical records (SMRs) with associated pictures; and excerpts from his discharge packet.


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.  On 13 November 1985, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 2 January 1986, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed training requirements and was awarded military occupational specialty 16P (Chaparral Crewmember). 

3.  On 26 March 1986, the applicant was arrested by civil authorities in El Paso, Texas on a charge of transaction card theft.  He was convicted and sentenced to a restitution fee of $500.00 and probation.  He was in civil confinement from 26 March – 26 April 1986.

4.  On 19 January 1988, the applicant sustained a penetrating injury to his left eye.  He underwent a corneal field laceration repair at a civilian hospital and was then referred back to the Ophthalmology Service, Bayne-Jones Army Community Hospital, Fort Polk, Louisiana, for follow-up.  On 31 March 1988, he was admitted to the hospital for a cataract extraction of his left eye.  He was discharged from the hospital with a final diagnosis of corneal perforation with corneal scleral lacerations, status post primary repair; traumatic cataract with phako and anaplylactic reaction associated with a trauma to the cortex; and status post extracapsular cataract extraction, left eye.  He was discharged in stable condition, with a regular diet, and a light duty profile for a period of 90 days.  

5.  A computed tomography scan (CT scan) on 28 February 1988 revealed a fracture about the anterior wall of the left maxillary sinus about the left ethmoid sinuses, about the nasal bone with deviation of the septum; possible fracture floor of the left orbit and suggestion of a fracture through the anterior wall of the left front sinus.  There was associated mucosal thickening of the left maxillary sinus and frontal sinuses.  No intracranial masses or shift of the cerebral structures was present, and some soft tissue swelling about the left orbit anteriorly was noted, most likely post operative in nature.  

6.  On 8 July 1988, the applicant departed in absent without leave (AWOL) status and remained so absent until he was apprehended by military authorities on 17 December 1990 and returned to military control at Fort Knox, KY.

7.  On 26 December 1990, the applicant was charged with AWOL (8 July 1988 – 17 December 1990). 

8.  On 27 December 1990, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He did not submit a statement in his own behalf.

9.  On 7 March 1991, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge. 

10.  Accordingly, the applicant was discharged on 10 April 1991 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions on his DD Form 214 (Report of Separation from Active Duty).  He was credited with 2 years, 8 months, and 29 days of total active service and had 925 days of lost time due to civil confinement and AWOL.  

11.  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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate.


12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  RE-1 and 2 permit immediate reenlistment if all other criteria are met. An RE code of RE-3 was entered when a Soldier's record indicated that he or she was ineligible for or otherwise been denied immediate reenlistment; had signed a Declination of Continued Service Statement (DCSS); had met his or her retention control point (established in Army Regulation 608-280); or confinement; or had an Immediate Reenlistment Prohibition Code.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

16.  A separation code of "KFS" applied to persons who were separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service – in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table shows that an RE code of 3 was the applicable RE code assigned for individuals separated for this reason.

17.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his left eye injury, the applicant was arrested and convicted for transaction card theft, incurring 31 days of lost time due to civil confinement.  He was sentenced to a restitution fee of $500.00 and probation.

2.  The available evidence shows the applicant sustained a traumatic eye injury on 19 January 1988 and he underwent surgery.  He had follow-up surgery in March 1988, and was placed on a 90-day light duty profile.  It appears that he received the necessary medical treatment he needed.  There is no evidence that the applicant was maltreated by his unit or that he did not receive the assistance he needed.  He failed to produce any evidence to corroborate this contention.

3.  The applicant was AWOL for more than 29 months, for which court-martial charges were preferred against him.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.  In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

4.  There is no evidence that the applicant was diagnosed with or treated for PTSD prior to his discharge.  

5.  Given the foregoing, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel warranting an honorable discharge.  It is noted that the applicant requested that Board make recommendations to accommodate his injury and restore his benefits under the DVA guidelines; however, there is no policy which permits this type of action and the Board does not have the jurisdiction to restore the applicant's DVA benefits.   

6.  The applicant's RE code is based on his reason for discharge and the reason for discharge is fully supported in the official record.  The RE code cannot be changed unless the applicant's narrative reason for discharge is changed.  The RE code the applicant was assigned is proper and in conformance with regulatory guidance.  In this case, the applicant has failed to provide sufficient mitigation to warrant any change in his type of discharge.  Therefore, there is no basis upon which to change the applicant's RE code.

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080012320





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ABCMR Record of Proceedings (cont)                                         AR20080012320



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