IN THE CASE OF:	  

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080016918 


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 the narrative reason for his separation be changed to a medical discharge. 

2.  The applicant states that at the time of his discharge, his DA Form 201 (Military Personnel Records Jacket) (also known as the 201 file) was misplaced.  He adds that in 1992 President Reagan was upgrading discharges; however, he (the applicant) missed the deadline because a letter was sent to his old address. He also adds that he was given medications for tuberculosis (TB) at Fort Meade, Maryland, and that at the time of his discharge, he was given a six month supply of medications.  He also adds that while waiting at Fort Knox, Kentucky, he was placed in isolation at the hospital and a tube was inserted in his nose to his lungs, every day for more than 10 days.  He then left the hospital and returned to the company where he overheard two captains talking about giving him an obsolete spinal tap, and that was when he decided he did not want to be a "guinea pig.” 

3.  The applicant provides a copy of letter, dated 30 April 1982, from the Army Discharge Review Board (ADRB) for a personal hearing, 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.  With prior enlisted service, the applicant's records show he enlisted in the Regular Army for a period of 2 years on 17 June 1969.  He completed basic combat training (BCT) at Fort Jackson, South Carolina.  

3.  On 2 September 1969, during a routine trainee medical examination, the applicant tested positive for TB and was accordingly instructed to report to his unit dispensary so that follow-up procedures deemed necessary by local medical personnel could be accomplished.  He was accordingly treated throughout September 1969.

4.  Upon completion of BCT, the applicant was ordered reassigned to Fort Hood, Texas, for completion of advanced individual training (AIT) for military occupational specialty (MOS) 71F (Postal Clerk), with a reporting date of 2 November 1969.  However, he failed to report on that date.  Accordingly, on 2 November 1969, his unit at Fort Hood, Texas, reported him in an absent without leave (AWOL) status.  

5.  The applicant's records further show that, during this period of AWOL, he was confined by civil authorities in Green County Jail, Xenia, Ohio, on 21 November 1969 for the civilian charges of possession of stolen credit cards and operating a motor vehicle without the owner's consent.  The facts and circumstances surrounding the applicant's trial, court sentence, and/or release are not available for review with this case.  However, his records indicate that he returned to military control on 28 December 1969. 

6.  On 24 January 1970, the applicant departed his unit at Fort Hood, Texas, in an AWOL status and was subsequently dropped from the Army rolls on 16 April 1970.  He remained in this status until he was apprehended by civil authorities in Xenia, Ohio, on 21 April 1970 and returned to military control at Fort Knox, Kentucky, on 22 April 1970.



7.  On 12 May 1970, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods on or about 2 November 1969 through on or about 29 December 1969 and on or about 24 January 1970 through on or about 21 April 1970.   

8.  On 14 May 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

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

10.  On 26 May 1970, the applicant's immediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate and remarked that the applicant’s actions made him vulnerable to punitive or other adverse personnel actions and that there were no grounds for other disposition of the applicant.

11.  On 4 June 1970, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 4 June 1970, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 6 months of creditable active military service and had 158 days of lost time.

12.  On 4 August 1992, the ADRB denied the applicant’s petition for an upgrade of his discharge.
13.  AR 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.

14.  AR 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.

15.  AR 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.

16.  The Special Discharge Review Program (SDRP), often referred to as the "Carter Program," was announced on 29 March 1977.  On 4 April 1977, the Department of Defense  (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This DOD SDRP required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia (SEA), been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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.  Separation by reason of disability requires processing through the PDES.  

18.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a medical evaluation board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be changed to a medical discharge.

2.  The applicant’s contention that his 201 file was misplaced is noted.  Additionally, the applicant’s routine TB illness and subsequent treatment is also noted.  However, there is no evidence in the available record and the applicant did not provide any evidence that shows his two instances of AWOL resulted from the loss of his 201 file and/or his TB illness.

3.  With respect to the presidential upgrade, the applicant is referring to Public Law 95-126, which was enacted in October 1978, during President Carter's era (not President Reagan).  There is no evidence in the applicant's records that shows he completed a normal tour of duty in SEA, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Furthermore, there is no indication that the applicant requested consideration of his case by the suspense established by this program.



4.  Contrary to the applicant’s contention that his misconduct was a result of an alleged “guinea pig” experiment, his record shows that he departed his unit in an AWOL status on two different occasions.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows that his two instances of AWOL were a result of the alleged experimentation and/or an alleged obsolete spinal tab.   Even if he was given an alleged obsolete spinal tab, he had many legitimate avenues through which he could have received assistance or relief, had he chosen to use them.

5.  With respect to changing the narrative reason for separation to a medical discharge, there is no evidence in the available record and the applicant did not provide substantiating evidence that shows he was issued a permanent profile or that he underwent an MEB or a PEB.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.  The applicant's records in this case show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20080016918



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016918



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1