IN THE CASE OF:	  

		BOARD DATE:	        12 March 2009

		DOCKET NUMBER:  AR20080016347 


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 undesirable discharge be changed to a medical discharge.

2.  The applicant states that he should have received a medical discharge due to him contracting hepatitis before his discharge.  The applicant further states because of his medical problem he is unable to hold a job.  

3.  The applicant provides a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 13 November 1970.

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 contentions are new arguments which will be considered by the Board.  In addition, the evidence provided is new evidence which will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 23 September 1966 and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 36K (Wireman).  

4.  On 14 February 1968, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) for the periods 11 January 1968 through 22 January 1968 and 23 January 1968 through 30 January 1968.  His sentence consisted of a forfeiture of $68.00 per month for 1 month and confinement at hard labor for 1 month.

5.  On 20 July 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order and two specifications of failing to be at his appointed place of duty.

6.  On 26 August 1968, the applicant accepted NJP under Article 15, UCMJ for failing to read the duty roster and failing to report to guard duty.

7.  On 31 July 1969, the applicant was convicted by a summary court-martial of being AWOL for the period 17 May 1969 through 10 July 1969.  His sentence consisted of a forfeiture of $50.00 per month for 1 month and reduction to the rank/grade of Private (PV2)/E-2.

8.  On 26 February 1970, the applicant was convicted by a special court-martial of being AWOL for the period 14 August 1969 through 17 February 1970.  His sentence consisted of a forfeiture of $50.00 per month for 6 months, reduction to the rank/grade of Private (PV1)/E-1, and confinement at hard labor for 5 months.

9.  On 1 June 1970, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

10. Evidence of record shows that the applicant was AWOL for the period 
21 August 1970 through 30 August 1970.

11.  On 28 September 1970, the applicant accepted NJP under Article 15, UCMJ for being absent from his place of duty.

12.  The applicant's commander initiated a request to discharge the applicant for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability).  
13.  On 9 October 1970, the applicant consulted with counsel.  He was advised of his rights and the effect of a waiver of those rights and was also advised of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated that he was counseled by appropriate counsel, that he waived consideration of his case by a board of officers, that he did not provide statements in his own behalf, and that he waived representation by military counsel.

14.  On 9 October 1970, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-212 for unfitness.  The reason cited by the commander was that a psychiatric evaluation determined that the applicant possessed a passive-aggressive personality, chronic, severe, manifested by stubbornness, inefficiency, passive obstructionism, and poor performance of military duty. 

15.  On 22 October 1970, the appropriate authority approved the applicant's discharge for unfitness with an undesirable, under other than honorable conditions discharge, under the provisions of Army Regulation 635-212.  

16.  The applicant provided an SF 600, dated 13 November 1970, that shows he was admitted to Madigan General Hospital, Tacoma, Washington, on 
23 October 1970 and discharged on 13 November 1970, after he requested a waiver to sign out of the facility.  The document further indicates that he was diagnosed with hepatitis and that he refused to let blood work be drawn for lab studies that week.  An undated SF 597 (Clinical Record) shows that the applicant signed a waiver to be released from the hospital against medical advice.

17.  On 17 November 1970, the applicant was discharged by reason of unfitness after completing 2 years, 9 months, and 11 days of creditable active service with 490 days of lost time due to AWOL and confinement.  Item 13a (Character of Service) of the applicant's DD Form 214 shows the entry "UNDER OTHER THAN HONORABLE CONDITIONS."

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.

19.  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.  

20.  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.

21.  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.  Paragraph 4-3 states 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 under other than honorable conditions.  An exception may be made by the general court-martial convening authority if the disability is the cause, or a 
substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have received a medical discharge due to contracting hepatitis before his discharge.  

2.  The medical document provided by the applicant shows that he was diagnosed at that time with hepatitis.  In addition, after being admitted to the hospital, he refused to let blood work be drawn for lab studies and signed a waiver to be released from the hospital against medical advice.  There is no evidence in the available records that shows his condition was the cause of his acts of indiscipline.  There is no medical evidence of record that shows he had any disease prior to his discharge that would have rendered him eligible for physical disability processing.  

3.  In addition, Army Regulation 635-40, paragraph 4-3 states 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 under other than honorable conditions.  As noted above, there is no evidence of record to show that the applicant had any medical condition that caused his acts of indiscipline; therefore, it appears he was not eligible for physical disability processing.

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)                                         AR20080016347



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ABCMR Record of Proceedings (cont)                                         AR20080016347



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