IN THE CASE OF:	  

	BOARD DATE:	  18 November 2008

	DOCKET NUMBER:  AR20080014164 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he was blind in his right eye at the time of his enlistment.  When the Army discovered he was blind in his right eye he was discharged.  He contends that his discharge should be upgraded because of his blindness.

3.  The applicant provides no additional documentary 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.  On 29 October 1976, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

3.  The applicant's service medical records are not available for review.

4.  Item 22 (Physical Status) of the applicant’s Personnel Qualification Record (PQR), Part II (DA Form 2-1), shows that during his medical examination on 
29 October 1976, he was 69 inches tall, weighed 140 pounds, and wore glasses.

5.  On 3 February 1977, the applicant was assigned on-the-job training as an azimuth laying specialist (MOS 15E) with the 3rd Battalion, 9th Field Artillery Regiment, Fort Sill, Oklahoma.

6.  The applicant’s 11 May 1977, DA Form 2 (PQR) Part 1, Item 30 (PULHES) shows his physical profile as being 1 -1 -1 - 1- 2 - 1.  The rating of “2” indicates a correctable deficiency in his vision.

7.  On 16 February 1978, the applicant was convicted by special court-martial of being absent without leave (AWOL) during the period from 9 August to on or about 7 December 1977.  His sentence consisted of reduction to private, pay grade E-1, confinement at hard labor for 2 months, and a forfeiture of $100.00 pay per month for 3 months (suspended).  He served 46 days in confinement and was released on or about 16 March 1978. 

8.  The applicant was AWOL from 2 May to 5 July 1978.  He was apprehended by civilian authorities and returned to military control on 6 July 1978.

9.  On 10 August 1978, charges were preferred under the Uniform Code of Military Justice for violation of Article 86 for being AWOL during the period from on or about 2 May to 5 July 1978.

10.  On 11 August 1978, 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 



11.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

12.  On 18 August 1978, the separation authority approved the applicant’s request for discharge.  On 31 August 1978, the applicant was discharged under other than honorable conditions.  He had completed a total of 1 year and 
2 months of creditable active military service and had accrued 246 days of lost time due to being AWOL and in confinement.

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

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, being AWOL more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The evidence of record shows that at the time of his enlistment he wore glasses.  However, there is no evidence showing that he was blind in his right eye at the time of his enlistment or that he became blind at any time during his enlistment.  Furthermore, even if he was blind, there is no available evidence showing that such blindness was a mitigating factor for his misconduct. 

4.  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 the aforementioned requirement.

5.  In view of the foregoing, 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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080014164



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