IN THE CASE OF:	

		BOARD DATE:	        26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018541 


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 a medical discharge.

2.  The applicant states, in effect, that he was given the impression he would be given a medical discharge due to his knee condition and flat feet.

3.  The applicant provides four service medical records and a copy of his DD Form 214 (Report of Separation 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 20 July 1977 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).

3.  On 3 March 1978, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 27 February 1978 to 2 March 1978.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, restriction, and extra duty.

4.  On 27 April 1978, nonjudicial punishment was imposed against the applicant for being AWOL from 18 April 1978 to 24 April 1978.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, restriction, and extra duty.

5.  The applicant went AWOL on 10 October 1978 and returned to military control on 11 June 1979.  On 11 June 1979, charges were preferred against the applicant for the AWOL period.

6.  On 13 June 1979, the applicant consulted with counsel and requested 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 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.  In summary, he stated that he was not getting the same opportunity regarding making rank and that he had a serious problem with his legs.

7.  On 13 June 1979, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of "111111."  Items 36 (Feet) and 37 (Lower Extremities) of his Standard Form 88 (Report of Medical Examination) are rated normal.  His Standard Form 93 (Report of Medical History), dated 13 June 1979, shows he reported that he was in good health.

8.  On 27 June 1979, the separation authority approved the applicant’s request for discharge and directed that he be furnished a discharge under other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 17 July 1979 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served a total of 1 year, 3 months, and 6 days of active service with 295 days of lost time due to AWOL.

10.  In support of his claim, the applicant provided four service medical records which show he complained of having flat feet and that he was treated for feet and knee pain.

11.  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.

12.  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:

Although the applicant contends that he was given the impression that he would be given a medical discharge due to his knee condition and flat feet, there is no evidence of record to show he was ever medically unfit to perform his duties.  In addition, he was found qualified for separation on 13 June 1979 and his feet and lower extremities were rated normal.  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)                                         AR20080018541



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ABCMR Record of Proceedings (cont)                                         AR20080018541



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