IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20080017313 


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 general discharge be upgraded to honorable. 

2.  The applicant states that he was legally blind while in the service but it was not discovered until 1994.  He contends that he kept having periods of blindness which was later found to be retinitins pigmentosa.  He also contends that the lost time shown on his discharge is in error.  

3.  The applicant provides a statement, dated 23 July 2008; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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.  The applicant enlisted in the Regular Army on 16 March 1978 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).     

3.  The applicant’s DA Form 2 (Personnel Qualifications Record), prepared on 
25 February 1980, shows his physical profile was 111121.  The numerical designator "2" is for eyes.  

4.  On 8 March 1980, nonjudicial punishment was imposed against the applicant for four specifications of failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay, restriction, and extra duty.  On 4 June 1980, the suspended portion of the punishment was vacated.      

5.  Item 21 (Time Lost) on the applicant’s DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 12 April 1980 to 
13 April 1980.

6.  On 15 April 1980, nonjudicial punishment was imposed against the applicant for being AWOL from 7 March 1980 to 20 March 1980.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

7.  Item 21 on the applicant’s DA Form 20 shows that he was AWOL from 
21 April 1980 to 23 April 1980.

8.  On 22 May 1980, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  The unit commander recommended separation with a general discharge and cited the applicant's apathetic attitude towards the accomplishment of his duties and his history of AWOL. 

9.  On 23 May 1980, the applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement on his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge and that he had been provided an opportunity to consult with counsel.

10.  On 23 May 1980, the applicant elected not to undergo a separation physical or psychiatric evaluation.

11.  On 28 May 1980, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
12.  DA Forms 4187 (Personnel Action) show the applicant went AWOL on 
3 June 1980 and returned to military control on 5 June 1980.

13.  Accordingly, the applicant was discharged on 5 June 1980 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served a total of 2 years, 2 months, and 2 days of total active service.  Item 29 (Dates of Time Lost During This Period) on his DD Form 214 shows the entries, “800307-800319, 800412-800413, 800421-800423 & 800603-800604.”  

14.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

15.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 
5 provided that members who had completed at least 6 months but less than 
36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

16.  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. 

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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was legally blind while in the service, there is no evidence of record to support this contention.  His physical profile at the time of his separation shows he received a numerical designator of “2” under eyes which means he had a medical condition or physical defect which required certain restrictions in assignment within which he was physically capable of performing his military duty.  

2.  The evidence of record does not support the applicant’s contention that the lost time shown on his discharge is in error.  Evidence of record shows the applicant was AWOL on four separate occasions for a total of 20 days. 
  
3.  The applicant's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge.

4.  The applicant's record of service included two nonjudicial punishment and 
20 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.
  
5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

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

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)                                         AR20080017313





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ABCMR Record of Proceedings (cont)                                         AR20080017313



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