IN THE CASE OF:	  

		BOARD DATE:	        2 December 2008

		DOCKET NUMBER:  AR20080015227 


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 that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that his discharge should be upgraded due his immaturity at the time and a service connected disability.  He contends that he almost served three years and that he injured his left hand while boxing during maneuvers.  He also states that he wants his discharge upgraded so he can send his son to college and for entitlement to disability benefits.  He claims that he was thrown out of a third floor barracks window in Germany and that he was in a coma for three weeks, that he was raped several times before he went absent without leave (AWOL), and that his trial was set up by the commanding officer.

3.  The applicant provides a birth certificate; a copy of his DD Form 214 (Report of Separation from Active Duty); an Under Other Than Honorable Conditions Discharge certificate; a Report of Operation; and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 

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 was born on 8 July 1955.  He enlisted on 3 April 1975 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).  

3.  On 16 July 1975, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay.

4.  On 20 August 1975, nonjudicial punishment was imposed against the applicant for being AWOL for 2 hours.  His punishment consisted of a forfeiture of pay and restriction.

5.  On 9 June 1976, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay, and extra duty.

6.  On 15 February 1978, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of being AWOL from 
23 December 1977 to 25 December 1977 and for approximately 6 hours on 
9 January 1978.  He was sentenced to be confined at hard labor for 60 days, reduction to E-1, and to forfeit $100 pay per month for 2 months.  On 6 March 1978, the convening authority approved the sentence.  

7.  On 23 February 1978, charges were preferred against the applicant for two specifications of failure to go at the time prescribed to his appointed place of duty, two specifications of behaving with disrespect toward superior commissioned officers, disobeying a lawful command, two specifications of striking superior commissioned officers, using disrespectful language, and communicating a threat to injure.  Trial by special court-martial was recommended.  

8.  On 22 March 1978, the applicant requested discharge for the good of the service (conditional).  The request was conditional solely upon the issuance of a general discharge.

9.  On 7 April 1978, the applicant consulted with counsel and requested 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 he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf; however, his statement is not available.

10.  On 7 April 1978, the applicant underwent a separation physical examination and was found to be qualified for a “Chapter 10 Physical” with a physical profile of 111111.  In item 8 (Statement of Examinee’s Present Health and Medications Currently Used) on his Standard Form 93 (Report of Medical History), dated 
7 April 1978, he reported that he was in “Good health.”
    
11.  On 19 April 1978, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

12.  Accordingly, the applicant was discharged under other than honorable conditions on 2 May 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 3 years and 27 days of creditable active service with 3 days of lost time due to AWOL.

13.  On 8 March 1982, the Army Discharge Review Board denied the applicant’s request for a general discharge or an honorable discharge.

14.  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 discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.  

16.  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.

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted and he successfully completed basic combat training and advanced individual training.    

2.  The applicant’s contention that he had a service connected disability was noted.  However, medical evidence of record shows he was found qualified for a separation physical with a physical profile of 111111 and on 7 April 1978 he reported that he was in “Good health.”    

3.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

4.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  

5.  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.    

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  The applicant’s record of service included three nonjudicial punishments, one special court-martial conviction, and 3 days of lost time.  As a result, his record of service was not satisfactory and 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 a general discharge or an honorable discharge.

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.




      _______ _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)                                         AR20080015227





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ABCMR Record of Proceedings (cont)                                         AR20080015227



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