IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090000606 


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, an upgrade of his discharge.  

2.  The applicant states that he was being held on a medical discharge and that while being held he became impatient and departed in an absent without leave (AWOL) status and was ultimately discharged because of this action.  He also states that he still suffers from physical and psychological problems from his military service.

3.  The applicant provides a copy of a letter of commendation, dated 12 February 1980; 4 character reference letters and/or statements of support, dated on various dates; copies of various clinical records, chronological record of medical care, treatment records, and other medical documents, dated on miscellaneous dates throughout his military service; a copy of a medical report, dated 7 April 1994, subsequent to a motor vehicle accident; a copy of an orthopedic report, dated 12 November 1993; and a copy of a report of medical records review, dated 9 May 1994, 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's record shows he enlisted in the Massachusetts Army National Guard (MAARNG) for a period of 6 years on 15 May 1979.  He subsequently entered active duty for training on 28 November 1979 and was assigned to Company C, 1st Training Battalion, 5th Training Brigade, Fort Dix, NJ, for completion of basic combat and advanced individual training.

3.  On 18 February 1980 and subsequent to completion of basic combat training, the applicant departed his training unit in an AWOL status.  He returned on 24 February 1980.  

4.  On 21 March 1980, the applicant again departed his training unit in an AWOL status and was subsequently dropped from the Army rolls on 20 April 1980.  He surrendered to military authorities at Westover, MA, and was returned to Fort Dix, NJ, on 13 March 1981.

5.  On 17 March 1981, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 21 March 1980 through on or about 13 March 1981. 

6.  On 20 March 1981, 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 Uniform Code of Military Justice, 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 635-200 (Personnel Separations).

7.  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. 

8.  On 30 March 1981, the applicant’s immediate and intermediate commanders recommended approval of the applicant’s discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  His immediate commander remarked that the applicant had no motivation for continued service and would not have responded to either counseling or rehabilitation.  The immediate commander further remarked that the applicant had been medically examined and was determined to be qualified for separation.

9.  On 2 April 1981, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced the lowest enlisted grade.  On 27 May 1981, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions. This form further confirms the applicant had completed 6 months and 13 days of creditable active military service and had 362 days of lost time due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitation.

11.  The applicant submitted four character reference letters/statements of support as follows:

	a.  in his statement, dated March 2008, the applicant gives an overview of his entry onto military service and accomplishments in basic combat training, specifically achieving the highest score on the Soldier’s Stakes. He adds that after basic training, he suffered an injury to his knee which led to him going AWOL while awaiting a medical discharge.  After discharge, he underwent orthopedic surgery on his knee in 1994.  The orthopedic surgeon indicated in his report that the applicant had suffered the knee injury while in the military and that he qualifies for a 15 percent permanent impairment according to the American Medical Association (AMA) Guide, which also equates to a 6 percent permanent impairment of his whole body;

	b.  in her statement, dated 11 March 2008, the applicant’s mother recalls the time when her son, the applicant, entered basic training and how he graduated on top of his class and attained the highest score during the Soldier’s Stakes.  She also states that at some point, he (the applicant) told her that he injured his knee and received treatment/therapy for his injury.  However, his pain persisted and he was admitted to the hospital at Fort Dix, NJ, and remained there for about six weeks.  She further adds that he told her he was awaiting a medical discharge from the Army and that after waiting for several days, he became very upset; so, he left the hospital and came back home.  He eventually returned to military control after a warrant was issued for his arrest and was ultimately discharged under chapter 10.  She concludes that her son was young at the time. He reacted out of frustration without thinking of the long term effects of his decision; 

	c.  in a statement, dated 11 March 2008, the applicant’s father states that the applicant informed him about his right knee injury during basic combat training and that after several weeks of treatment and physical therapy, the knee was still giving him problems.  He then told him that he was going to be medically discharged and was assigned to the medical hold unit in the hospital at Fort Dix, NJ.  After weeks of waiting, he became upset and went AWOL while awaiting the medical discharge; and

	d.  in a statement, dated 11 March 2008, the applicant’s brother states that he recalls back in 1979, his brother (the applicant) went to basic training and was awarded a letter of commendation for achieving a high score on the Soldier’s Stakes.  However, he injured his right knee and was subsequently placed in a medical hold status at the Army hospital at Fort Dix, NJ, awaiting a medical discharge.  The medical discharge took too long and his brother became upset with the system, so he departed in an AWOL status.  He concludes that the applicant was young at the time and did not think of the implications of his actions.

12.  The applicant submitted copies of various clinical records, chronological record of medical care, treatment records, and other medical documents, dated on miscellaneous dates during and after his military service, as follows:

	a.  in early February 1980, the applicant injured his right knee.  During treatment on 26 February 1980, he stated that he had previously injured his right knee while playing football 3 years before entering the Army.  He subsequently underwent treatment and physical therapy of his EPTS (existed prior to service) injury and was issued a temporary physical profile, limiting his physical activities; 

	b.  in September 1993, the applicant was involved in a motor vehicle accident and in November 1993, he was diagnosed with lumbar strain and contusion to both knees, related to his accident; and 

	c.  in April 1994, the applicant complained of low back pain and bilateral knee pain arising from the injuries sustained in the September 1993 motor vehicle accident.

13.  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.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that his discharge should be upgraded because he suffered a knee injury and the evidence he submitted were carefully considered; however, there is insufficient evidence to grant him the requested relief.  

2.  The applicant’s knee injury existed prior to his military service as evidence by the medical document that the applicant submitted.  Furthermore, he received appropriate treatment and physical therapy upon reinjuring his knee in basic combat training.  There is no evidence in the applicant’s records and the applicant did not provide any evidence that shows he was pending a medical discharge or that his AWOL was caused by an alleged medical discharge.


3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 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.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  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 has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090000606



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ABCMR Record of Proceedings (cont)                                         AR20090000606



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