IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080015938 


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 or changed to a medical discharge.

2.  In an application, dated 6 October 2008, the applicant states that in March 1980 he was attached to the medical holding company and that his discharge should be a medical discharge under honorable conditions.

3.  In an application, dated 13 November 2008, the applicant states, in effect, that his misconduct was not criminal, that he had unused leave, and that he was not on active duty.  He also states that while serving in Germany a doctor discovered he had a hernia and that he needed surgery, and he was relieved from duty.  He contends that the doctor at the headquarters of the medical department activity at Fort Knox stated that he qualified for a separation due to physical disability.  He indicates that after spending two weeks in the medical department he went absent without leave (AWOL) to take care of family issues.  He further states that in 1980 he discovered he had a mental problem from being in the Army field artillery.

4.  The applicant provides two applications; service personnel records; an excerpt from Title 10, section 1218; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); Social Security documentation; 1992 medical records; and a 2005 psychological evaluation in support of his applications.

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 enlisted in the Regular Army on 21 June 1979 for a period of 3 years.  He successfully completed one station unit training in military occupational specialty 13B (cannon crewman).

3.  Orders 44-1, dated 1 April 1980, show the applicant was attached to the Medical Holding Company at Fort Knox, Kentucky, for hospitalization and medical treatment during the period 23 March 1980 to 20 June 1980.  Records show the applicant's duty status changed from hospital to AWOL effective 5 April 1980.  He surrendered to military authorities on 11 May 1980.

4.  On 14 May 1980, court-martial charges were preferred against the applicant for being AWOL from 5 April 1980 to 11 May 1980.

5.  On 15 May 1980, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of "111121."  Item 31 (Abdomen and Viscera (include hernia)) on his Standard Form 88 (Report of Medical Examination) is rated normal.  His Standard Form 93 (Report of Medical History) shows he reported he had a rupture/hernia.  Item 25 (Physician's summary and elaboration of all pertinent data) on this form states that he had a "hernia which has not repaired otherwise [negative military medical history]."

6.  On 16 May 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an under other than honorable discharge certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an under other than honorable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that he joined the Army to learn something that could help him when he got out; however, he was not learning anything from his military occupational specialty.  He also stated that he wanted a discharge but a good one and that he had been in the Army for one year.

7.  On 28 July 1980, the separation authority approved the applicant’s request for discharge and directed that he be furnished a discharge under other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 13 August 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served 1 year and 17 days of creditable active service with 36 days of lost time due to being AWOL.

9.  There is no evidence of record which shows the applicant was diagnosed with any mental condition prior to his discharge.

10.  On 6 September 1986, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

11.  On 14 November 2007, the ABCMR considered and denied the applicant's request for a discharge upgrade to a general discharge.

12.  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.

13.  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.

14.  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.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  Family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show 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.

2.  The applicant’s record of service included 36 days of lost time.  As a result, his record of service 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 an honorable discharge.

3.  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.
4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Although the applicant was placed in the Medical Holding Company at Fort Knox, Kentucky, the exact reason is unknown.  It appears that it may have been for evaluation and treatment of his hernia.  It also appears that he did not complete treatment as a result of his AWOL.

6.  The applicant contends that his discharge should be changed to a medical discharge; however, there is no evidence of record to show he was ever found medically unfit to perform his duties.  In addition, he was found qualified for separation on 15 May 1980.  Therefore, there is no basis for a medical 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)                                         AR20080015938





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ABCMR Record of Proceedings (cont)                                         AR20080015938



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