IN THE CASE OF:	  

		BOARD DATE:	  	  6 January 2009

		DOCKET NUMBER:  AR20080015076 


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, upgrade of his discharge, characterized as under other than honorable conditions, to an honorable discharge.

2.  The applicant states, in effect, that his discharge was inequitable because he started experiencing medical illnesses after joining the Army, his medical condition was not taken seriously, he was denied medical attention while in an enlisted status, and his medical condition caused him to leave the military.

3.  The applicant provides a copy of an Horizon Family Medicine, P.A., Authorization for Use of Disclosure of Protected Health Information, dated 1 August 2008, with three pages of enclosures and three pages of Smithfield Family Medicine Confidential Medical Records.

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 military personnel records show he enlisted in the U.S. Army Reserve Delayed Entry Program for a period of 8 years on 15 March 1989.  He then enlisted in the Regular Army and entered active duty for a period of 3 years and 14 weeks on 4 April 1989.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Infantryman).

3.  The applicant's military personnel records contain a DA Form 4187-E (Personnel Action), dated 8 November 1989, that shows his duty status was changed from present for duty (PDY) to absent without leave (AWOL) effective 0700 hours, 6 November 1989.

4.  The applicant's military personnel records contain a DA Form 4187 (Personnel Action), dated 8 December 1989, that shows his duty status was changed from AWOL to dropped from rolls (DFR), effective 0700 hours, 6 December 1989.

5.  The applicant's military personnel records contain a DA Form 4187, dated 5 March 1990, that shows his duty status was changed from DFR to attached/ PDY effective 0800 hours, 27 February 1990.

6.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 46-8, dated 8 March 1990, that show he was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, effective 27 February 1990.

7.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 5 March 1990, that shows the Commander, Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, preferred charges against the applicant for violation of the Uniform Code of Military Justice, Article 86, with the specification that the applicant did, on or about 6 November 1989, without authority, absent himself from his organization, to wit:  Company C, 2d Battalion, 22d Infantry Brigade, located at Fort Drum, New York, and did remain so absent until on or about 27 February 1990.

8.  On 5 March 1990, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a discharge under other than honorable conditions if the request is approved, of the effects of the request for discharge, and the procedures and rights available to the applicant.

9.  The applicant signed his request for discharge which showed that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person, that he acknowledged guilt to the offenses charged, that he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant elected to submit a statement of admission of AWOL for administrative purposes.  In his statement, the applicant stated, in pertinent part, "[n]evertheless, knowing all this to be true, I waive all defenses that may have become known had my defense counsel been able to review my records."  He also stated, "[k]nowing all this to be true, I knowingly, willfully, and voluntarily declare that I was absent without leave from the U.S. Army from 6 November 1989 to 27 February 1990."  The applicant also stated, "I further declare that this agreement only pertains to my unauthorized absence without leave."   The applicant’s statement shows that both he and his legal counsel placed their signatures on the document.

10.  On 3 May 1990, the Acting Commander, Special Processing Company, U.S. Army Personnel Control Facility, 2d Armor Training Brigade (Armor Leader), U.S. Army Armor Center and Fort Knox, recommended approval of the applicant’s request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  He stated the applicant’s conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and, based on his previous record, punishment can be expected to have a minimal rehabilitative effect.  The acting commander added that there did not appear to be any reasonable ground to believe that the applicant is, or was at the time of his misconduct, mentally defective, deranged, or abnormal.  The acting commander concluded by recommending discharge of the applicant under other than honorable conditions.
11.  On 3 May 1990, the Commander, U.S. Army Personnel Control Facility, 2d Armor Training Brigade (Armor Leader), U.S. Army Armor Center and Fort Knox, recommended approval of the applicant’s request for discharge from the U.S. Army for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 with an under other than honorable conditions discharge.

12.  On 18 May 1990, the Commander, 2d Armor Training Brigade (Armor Leader), U.S. Army Armor Center and Fort Knox, approved the applicant’s request for discharge pursuant to chapter 10 of Army Regulation 635-200 with a discharge under other than honorable conditions.  The commander also directed the immediate reduction of the applicant to the lowest enlisted grade.

13.  The applicant’s military personnel records are absent a copy of his separation physical examination.

14.  There is no evidence that the applicant was referred to a medical evaluation board or a physical evaluation board.

15.  The applicant's military personnel records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered this period of active duty on 4 April 1989 and was discharged on 29 June 1990 with a character of service of under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial with the separation code "KFS."  This document also shows that at the time of his discharge the applicant had completed 11 months and 5 days of net active service.  The DD Form 214 also shows that the applicant had time lost under Title 10, U.S. Code, section 972, from 6 November 1989 through 26 February 1990.

16.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

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.

18.  In support of his application, the applicant provides a Horizon Family Medicine, P.A., Authorization for Use of Disclosure of Protected Health Information, dated 1 August 2008, with three pages of enclosures and three pages of Smithfield Family Medicine Confidential Medical Records.  These documents show, in pertinent part, that the applicant has a history of moderate migraine headaches which began years ago that are aggravated by stress and lack of sleep, and occur approximately twice a month lasting for 3 days.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of Unfitness Because of Physical Disability) of this Army regulation, in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

20.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

21.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 of this Army Regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

22.  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.



23.  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.

24.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

25.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to an honorable discharge because his medical condition was ignored by Army officials which caused him to go AWOL and resulted in him receiving a discharge that was inequitable with his character of service.

2.  There is no evidence of record that shows the applicant was referred to a medical evaluation board or a physical evaluation board.  In addition, there is no evidence of record that shows the applicant was found unfit for retention in military service duty during the period of service under review.  Moreover, the applicant provides insufficient evidence to show that his medical condition was ignored by Army officials and this caused him to go AWOL.  Therefore, in view of the foregoing, the applicant provides insufficient evidence in support of his claim that his discharge was inequitable based on his medical condition at the time.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In the absence of evidence to the contrary, the presumption is that the applicant was found medically qualified for administrative separation.



4.  The evidence of record shows that the applicant requested a discharge for the good of the service in lieu of trial by court-martial and the appropriate separation authority approved the applicant’s request for discharge.  The evidence of record also shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

5.  The evidence of record shows that the applicant was AWOL from 6 November 1989 through 26 February 1990, which equates to 111 days (i.e., nearly 4 months) AWOL during the period of service under review.  In addition, the evidence of record shows the applicant only completed approximately 11 months of his 3-year and 14-week enlistment commitment.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  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 requirement.

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)                                         AR20080015076



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ABCMR Record of Proceedings (cont)                                         AR20080015076



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