IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080013207


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 (UOTHC) discharge be changed to a medical discharge, or that it be upgraded to a general, under honorable conditions discharge (GD), or honorable discharge (HD).

2.  The applicant states, in effect, his discharge should be changed or upgraded because of a back injury he sustained while serving on active duty.

3.  The applicant provides an Application for the Review of Discharge or Dismissal from the Armed Forces of the United States (DA Form 293) 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's record shows he enlisted in the Regular Army and entered active duty on 30 March 1979.  He successfully completed basic combat training at Fort Jackson, South Carolina, and was assigned to Fort Gordon, Georgia, to attend advanced individual training (AIT) in military occupational specialty (MOS) 31J (Teletypewriter Repairer).  After failing to meet course standards for MOS 31J, he was reassigned to Fort Benning, Georgia, to attend AIT in MOS 11B (Infantryman).  He successfully completed this course and was awarded MOS 11B on 31 January 1980.

3.  The applicant’s Personnel Qualification Record (DA Form 2) shows in Item 9 (Grade) that he was advanced to private/E-2 (PV2) on 30 September 1979, and this is the highest rank he held while serving on active duty.  Item 18 (Appointments and Reductions) of his Personnel Qualification Record (DA Form 2-1) also shows he was reduced to the rank private/E-1 (PV1) for cause on 10 November 1979.

4.  Item 9 (Awards and Decorations) of the applicant’s DA Form 2-1 shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Expert Marksmanship Qualification Badge with Hand Grenade Bar during his active duty tenure.  Item 21 (Time Lost) shows that he was twice reported absent without leave (AWOL), first from 27 November 1979 through 28 November 1979, and again from 15 February 1980 through 18 August 1980.

5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  His record reveals a disciplinary history that includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 December 1979 for being AWOL from on or about 27 November 1979 through on or about 29 November 1979.  His punishment for this offense was a forfeiture of $150.00 per month for two months.

6.  On 2 September 1980, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 15 February 1980 through on or about 19 August 1980.

7.  On 2 September 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.

8.  In his request for discharge, the applicant acknowledged his understanding that if he received an UOTHC discharge, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC Discharge.  The applicant also elected to submit a statement in his own behalf.

9.  In his statement, the applicant indicated that he should receive a hardship or medical discharge because he tried to do everything in his power to keep from going AWOL.  He stated that he turned in letters from his priest and his wife’s doctor regarding a nervous condition that caused her to lose a child.  He also stated that his family had no place to stay and that his family lived from house to house.  He further stated that he suffered a back injury during AIT at Fort Gordon, Georgia, which should have warranted his receiving a medical discharge instead of an UOTHC discharge; however, the Army did not seem to care about him or his family.  As a result, he had no choice but to take the Chapter 10 discharge given; he had to try to do what he could for his family.

10.  On 16 September 1980, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge under the provisions of Chapter 10, Army Regulation 635-200.  On 26 September 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 10 months and 17 days of creditable active military service and he accrued 220 days lost time.

11.  The applicant's record is void of any medical treatment records, or other documents that indicate he was ever treated for a disabling medical or mental condition that would have warranted his separation processing through medical channels during his active duty tenure.

12.  On 24 July 2008, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, the ADRB's 15-year statute of limitations had been exceeded in his case.  There is no indication he petitioned the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  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.

14.  The separation documents regulation stipulates that the separation authority may authorize a GD or HD to members separated under the provisions of Chapter 10 if it is supported by the member’s overall record of service; however, an UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-1 states, in pertinent part, a Soldier charged with an offense under the UCMJ, or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing.  Paragraph 4-3 states, in pertinent part, 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 UOTHC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UOTHC discharge should be changed to a medical discharge because he suffered a back injury while on active duty; or it should be upgraded to a GD or HD because he only went AWOL as a last resort to assist his family through a crisis which included the loss of a baby has been carefully considered.  However, there is insufficient evidence to support these claims.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to offenses under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  As a result, an upgrade of his discharge to either general or honorable would not be appropriate.

3.  In addition, there is no evidence of record or independent evidence provided by the applicant that shows he suffered from a disabling physical or mental condition at the time of his discharge that would have supported his separation processing through medical channels, or that disqualified him from further service at the time of his discharge processing.  The record confirms the applicant voluntarily elected an administrative discharge in order to avoid a court-martial that could have resulted in a punitive discharge.  As a result, there is no basis upon which to grant the applicant’s request for a medical discharge.

4.  Further, by regulation, a Soldier who is charged with an offense or who is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing, and 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 UOTHC.

5.  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 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)                                         AR20080013207



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ABCMR Record of Proceedings (cont)                                         AR20080013207



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