IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006854 


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 undesirable discharge be changed to a medical discharge.  

2.  The applicant states, in effect, he was told he was going to be discharged with a medical discharge because of his condition.  He also states, in effect, he contracted Hepatitis on the island of Okinawa.  He was allowed to go home after he reported back to the hospital and was told he was being discharged on a medical.  He was told his discharge would be mailed to him.  He was at home and did not receive anything.  He was picked up by the Federal Bureau of Investigations and taken to Fort Ord, California, and made to go through the routine of a new recruit.  The next day he was given papers to sign and then sent home and told his papers would come in the mail.  He believes, in effect, that his discharge should be changed because he did not do anything wrong.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and his letter from the Army Review Boards Agency (ARBA) Support Division, St. Louis, dated 21 March 2008.  

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 1 November 1968, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 11D, Armor Reconnaissance Specialist.  He was promoted to grade E-3 on 1 July 1969.  

3.  The applicant was honorably separated from active duty on 15 July 1969, for the purpose of immediate reenlistment.  He reenlisted for 4 years in the Regular Army on 16 July 1969.  

4.  On 10 October 1969, the applicant was punished under Article 15, Uniform Code of Military Justice (UMCJ), for being absent without leave (AWOL) from 3 September to 25 September 1969.  His punishment included a reduction to pay grade E-2, a forfeiture of $50.00 pay per month for two months, and 30 days restriction.

5.  The applicant served in Okinawa from 11 August 1970 to 18 December 1971.

6.  On 27 January 1970, the applicant was punished under Article 15, UMCJ, for the wrongful appropriation of a 1/4 ton truck on 25 January 1970.  His punishment included a forfeiture of $20.00 pay.

7.  On 28 October 1970, the applicant was punished under Article 15, UMCJ, for AWOL from 21 October to 23 October 1970.  His punishment included a reduction to pay grade E-2 and 14 days restriction and extra duty.

8.  On 10 May 1971, the applicant was convicted pursuant to his pleas by a special court-martial of four specifications of AWOL from 23 December to
27 December 1970, from 28 December to 31 December 1970, from 5 January to 24 January 1971, and from 24 January to 29 March 1971.  The applicant was sentenced to a reduction to pay grade E-1, confinement at hard labor for 30 days, and a forfeiture of $100.00 pay per month for three months.  The sentence was adjudged on 22 May and approved on 27 May 1971.

9.  The applicant was reduced to pay grade E-1 on 27 May 1971.

10.  The applicant was reported AWOL on 18 October 1971 and dropped from the rolls of his organization on 26 January 1972.  

11.  In a Commander's Inquiry memorandum, dated 26 January 1972, the applicant's commander stated that he initiated an informal investigation in an attempt to determine why the applicant absented himself without authority.  That investigation did not indicate any reason for the applicant's absence, other than what the enlisted man may reveal by interview.  

12.  In a letter, dated 21 March 1972, the applicant's mother was advised of his dropped from the rolls status and that he had been administratively classified as a deserter from the Army.

13.  The applicant was returned to military control on 3 August 1972.  

14.  The applicant underwent a separation medical examination on 9 August 1972.  He stated that he was in fair health.  He was found to have no complaints and qualified for separation.

15.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214, which shows that he was discharged on 1 September 1972, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, and issued an Undesirable Discharge Certificate.  He was credited with 2 years, 2 months, and 17 days total active service this period and 329 days lost time due to AWOL and confinement.

16.  In a letter, dated 21 March 2008, the ARBA Support Division, St. Louis advised the applicant that his DD Form 293 could not be processed because the statutory period for appeals prohibited the Army Discharge Review Board (ADRB) from processing applications received after 15 years from the date of discharge or release from active duty.  

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could, at any time after the charges had been preferred, could submit a request for discharge for the good of the service, in lieu of trial by court-martial.  At that time, an undesirable discharge was normally considered appropriate.  


18.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualifications for retention based on the 
criteria in Army Regulation 40-501, Chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

DISCUSSION AND CONCLUSIONS:

1.  After a comprehensive review of the applicant's official military records, his service medical records, and the evidence he submitted in support of his request, no error or injustice is shown to justify the relief he is requesting.

2.  The applicant's service medical records do not show he received medical treatment for Hepatitis while serving in Okinawa.  There is no evidence and the applicant has failed to present evidence that he experienced or was diagnosed with Hepatitis while serving on active duty.  He has also failed to show, through the evidence submitted with his application, or the evidence of record, that his discharge from active duty was incorrect.

3.  There is no evidence the applicant was referred to a medical evaluation or a physical evaluation board for consideration of Hepatitis while he served on active duty.  The evidence of record shows the applicant was punished twice under Article 15, convicted by a special and general courts-martial of AWOL, and dropped from the rolls as a deserter.  He accumulated a total of 329 days of lost time due to AWOL and confinement.  Upon his return to military control, it appears that he voluntarily requested discharge in lieu of facing a court-martial.  The applicant has provided insufficient evidence to show that his discharge was unjust.  

4.  There is no indication the applicant suffered a disabling condition while in a qualifying duty status that would have supported his processing for separation through medical channels; therefore, there is an insufficient evidentiary basis to support granting the applicant a medical discharge at this time.  

5.  From the evidence in this case, it is clear the applicant knew and understood the reasons for his discharge and the type of discharge he would be receiving.


6.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.  

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080006854



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ABCMR Record of Proceedings (cont)                                         AR20080006854


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