IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20090002196 


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 should be upgraded to a honorable discharge or corrected to show he was discharged for medical reasons. 

2.  The applicant states that he was not given a formal hearing and he did not have his legal rights explained to him.

3.  The applicant provides the following evidence in support of his request:

	a.  a self-authored statement, dated 30 December 2008;

	b.  his Undesirable Discharge Certificate, dated 9 July 1973; 

	c.  a letter, dated 9 July 1973, subject: order of ejection;

	d.  his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); 

	e.  a certificate for completion of basic training;

	f.  a DA Form 3349 (Medical Condition-Physical Profile Record), dated 
25 January 1972; 

	g.  his Standard Form 600 (Clinical Record-Narrative Summary), dated 8 May 1972;

	h.  copies of Special Orders Number 212, dated 7 December 1971; Special Orders Number 83, dated 24 April 1973; Special Orders Number 105, dated 24 May 1973; Unit Orders Number 125, dated 25 June 1973; Unit Orders Number 18, dated 27 April 1972; and Unit Orders Number 19, dated 8 May 1972; 

	i.  DA Forms 31 (Request and Authority for Leave), dated 2 February 1972, 25 April 1972, and 22 May 1972;

	j.  DA Forms 2627-1 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ), dated 17 April 1972 and 2 May 1972; and

	k.  copies of letters from the Department of Veterans Affairs one of which is dated 19 November 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 record shows he enlisted in the Regular Army for a period of 3 years on 15 November 1971 and was subsequently assigned to Fort Dix, NJ, for completion of basic combat training.

3.  On 2 December 1971, the applicant was issued a temporary physical profile due to a stress fracture of his right proximal tibia.  The attending physician indicated that the applicant was medically qualified for duty with temporary limitations as evidenced by a medical examination and a review of his medical records on 2 December 1971.  He was to be reexamined within 61 days. 

4.  On 25 January 1972, the applicant was reexamined and issued a second temporary physical profile.  The attending physician again indicated that the applicant suffered a stress fracture to his right proximal tibia; however, he was found to be medically qualified for duty with temporary limitations as evidenced by a medical examination and a review of his medical records on 25 January 1972.  He was to be reexamined within 30 days.

5.  On 2 February 1972, the applicant requested and was authorized a 3-day pass from 4 February to 6 February 1972.

6.  On 6 February 1972, while at home on pass, the applicant was involved in an accident while using a table saw when he accidently amputated his second and third finger of the right hand.  He subsequently underwent debridement surgery where closure of the two finger stumps was performed.  He tolerated the procedure well and was reexamined on 10 February 1972 and appeared to be healing well.  He was again examined on 22 February 1972 and had his sutures removed.  He subsequently underwent physical therapy and was released from medical care on 27 February 1972.  

7.  On 27 March 1972, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to his unit on 10 April 1972.

8.  On 17 April 1972, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL from 27 March through 
10 April 1972.  His punishment consisted of a forfeiture of $65.00 pay and 
14 days of restriction.

9.  On 25 April 1972, the applicant requested and was authorized a 3-day pass from 25 April to 28 April 1972.  However, he did not return from being on pass.  Accordingly, he was reported in an AWOL status on 29 April 1972.  He returned to his unit on 1 May 1972.

10.  On 2 May 1972, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL from 29 April 1972 to 1 May 1972.  His punishment consisted of a forfeiture of $65.00 pay for 1 month, 
14 days of restriction, and 14 days of extra duty.

11.  On 8 May 1972, the applicant complained of tenderness and pain over his second and third finger of the right hand.  He was subsequently examined at Walson Army Hospital, Fort Dix, NJ.  The attending physician indicated that his stump closure was doing fairly well and there did not seem to be any evidence of an infection.  However, the area was acutely tender, probably secondary to the digital nerves being very close to the stump closure site.  The attending physician indicated that the applicant was able to extend the second and third fingers fully; however, he was unable to flex the third finger and was only able to flex the second finger to 10 degrees, and that there seemed to be adequate abduction and adduction.  The attending physician further indicated that the applicant was unfit for retention in accordance with paragraph 12a(2) of Army Regulation
40-501 (Standards of Medical Fitness) and should be recommended for referral to a physical evaluation board.

12.  On 5 June 1972, the applicant departed his unit in an AWOL status for the third time and was subsequently dropped from Army rolls on 5 July 1972.  He remained in this status until he was apprehended by civil authorities and was returned to military control at Fort Devens, MA, on 10 April 1973.

13.  On 12 April 1973, court-martial charges were preferred against the applicant for one specification of being AWOL from 5 June 1972 to 10 April 1973.  

14.  On 16 April 1973, the applicant underwent a medical examination at Fort Dix, NJ.  He indicated that he was in good health and the attending physician indicated that he was found qualified for separation.

15.  On 17 April 1973, 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 635-200 (Personnel Separations).

16.  In his request for discharge, the applicant acknowledged he understood that by requesting discharge, he 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

17.  On an unknown date in 1973, the applicant’s intermediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.  He further remarked that the applicant had no motivation for continued service and he did not respond to counseling.  The immediate commander also stated that the applicant had been medically examined and found qualified for separation.
18.  On 17 May 1973, the applicant's senior commander also recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.
19.  On 21 May 1973, 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 that he receive an Undesirable Discharge Certificate and that he be reduced the lowest enlisted grade.  On 9 July 1973, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged and issued an Undesirable Discharge Certificate.  This form further confirms the applicant had completed 9 months and 5 days of creditable active military service and he had 324 days of lost time.

20.  In his self-authored statement, dated 30 December 2008, the applicant describes the circumstances that led to his injury and subsequent surgery to repair his fingers.  He adds that after his discharge from the hospital on 27 February 1972, he was told that he would be given ordinary leave while awaiting the physical evaluation board as long as he kept continuous contact with proper authorities at his unit.  He was then given a 30-day leave from 25 June 1973 until 24 July 1973, but when he returned, his paperwork for the evaluation board was still not completed.  After continuously waiting, talking, fighting for his case, and running around trying to get answers, and getting nowhere he became fed-up with the way he was being treated.  He further adds that he was young at the time and he only agreed to the discharge because the Army told him he could not stay in with his trigger finger missing.  Nevertheless, after years of embarrassment and shame, he found out the character of his discharge is similar to that of a dishonorable discharge.  He strongly disagrees with this and feels anger and hurt.  If he had known this he would never have accepted the discharge.  He concludes that he was never seen by the physical evaluation board and he was never given the opportunity to have a formal hearing or a court-martial to argue his case, and his legal rights were not explained to him.
Therefore, he feels that an injustice occurred to him and his family.  Accordingly, his discharge should be reviewed and changed.  

21.  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-years statute of limitations.

22.  Army Regulation 40-501 provides medical fitness standards to ensure uniformity in the medical evaluation of Army personnel.  The regulation, in effect at the time, states, in pertinent part, that members who are believed to be unfit because of physical disability or who have a condition listed in this regulation will processed to determine their eligibility for physical disability benefits under chapter 61, Title 10, U.S. Code (USC).  

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army Physical Disability Evaluation System in accordance with the provisions of chapter 61, Title 10, USC and Department of defense (DOD) Directive 1332.18, subject: Uniform Interpretation of Laws Relating to Separation from the Military Service by Reason of Physical Disability. The regulation in effect at the time, states, in pertinent part, that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.   

24.  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.

25.  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.

26.  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 contends that his undesirable discharge should be upgraded to a honorable discharge or corrected to show he was discharged for medical reasons. 

2.  The applicant's injury to his fingers and subsequent surgery and treatment are not in question.  Furthermore, the attending physician's recommendation to refer the applicant to a physical evaluation board is not in question.  However, the applicant appears to have taken matters into his own hands and departed his unit in an AWOL status on three separate occasions, totaling 324 days.  Once court-martial charges were preferred against him and he elected a discharge for the good of the service in lieu of a court martial, by regulation, he was no longer eligible for entry into the Army Physical Disability Evaluation System.  

3.  Contrary to the applicant's contention that he was never given a formal hearing or had his legal rights explained to him, the evidence of record clearly shows the applicant acknowledged in writing prior to requesting discharge, he was afforded the opportunity to consult with appointed counsel.  He also acknowledged that he consulted with counsel, on 17 April 1973, and that counsel fully advised him of his rights under the UCMJ.  

4.  The applicant’s record shows he was charged with the commission of an offense 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 and by law and regulation, the applicant was not entitled to a hearing.  

5.  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

6.  Additionally, the applicant has not established a basis for correcting his records to show he was discharged as a result of medical reasons. 

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)                                         AR20090002196



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ABCMR Record of Proceedings (cont)                                         AR20090002196



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