IN THE CASE OF:	  

		BOARD DATE: 	        30 June 2009

		DOCKET NUMBER:  AR20090003206 


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 discharge be changed to medical.

2.  The applicant states, in effect, that while serving in the Republic of Vietnam (RVN) he fell off a helicopter and hurt his wrists.  He claims they kept getting worse and after about 8 months, a friend told him to take some medication (heroin) he claimed would help.  He kept taking it until he was hooked.  He states that he finally overdosed on the drug and he was taken to a hospital and revived. 
He was then placed in a rehabilitation center.  He claims a major told him that because he was so close to the end of his service, he would be sent to the United States and would receive a medical discharge when he completed his recovery.  He states he arrived at Fort Lewis, Washington, and remained in detoxification for many more weeks.  When the time for his release came, the Army had lost his records and no one knew what to do with him.  He was then assigned to Fort Carson, Colorado, where he served as a clerk.  He states he was receiving no pay for months and he was unable to resolve this problem through his chain of command.

3.  The applicant claims he went absent without leave (AWOL) for a few weeks in order to work a civilian job so he could pay his bills.  He states that when he returned his pay problems were still not resolved and he went AWOL again to work his civilian job.  He states that when he returned this time he explained the situation to his commander who informed him that without records he could not resolve the problem.  He was asked if he wanted to get out.

4.  The applicant claims his Army service was going nowhere and he may not have been the best Soldier or a war hero, but he did the best he could.  He claims he was called a deserter and received an undesirable discharge (UD), which he thinks was totally wrong.  He states his wrists and hands are screwed up; he takes medication for mind problems and has been doing the best he can since he got out.  However, he would like some medical help if possible.

5.  The applicant provides a self-authored statement, DD Form 4 (Enlistment Contract), DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and DA Form 20 (Enlistment Qualification Record) 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 Regular Army and entered active duty on 13 April 1970, and was trained in and awarded military occupational specialty (MOS) 68C (Airframe Repairman).

3.  The applicant’s DA Form 20 shows he was promoted to specialist four (E-4) on 10 May 1971 and that this is the highest grade he held and served in while serving on active duty.  It also shows that he was reduced to private first class (E-3) on 20 April 1972 and to private (E-1) on 11 March 1973.

4.  The DA Form 20 shows the applicant served in the RVN from 1 December 1970 through 22 November 1971 and that during this tour he was assigned to the 362nd Aviation Company, 3rd Brigade, 1st Cavalry Division, performing duties in MOS 68G as an airframe repairman.  Both his last conduct and last efficiency ratings for the RVN were "unsatisfactory."  Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal, Vietnam Service Medal, and RVN Campaign Medal with Device (1960) during his active duty tenure.  His record documents no acts of valor or significant achievement.
5.  The applicant’s disciplinary history includes his accrual of 98 days of time lost due to three separate periods of AWOL and his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.

6.  On 21 August 1971, while serving in the RVN, the applicant accepted NJP for disobeying a lawful order, carrying a concealed weapon, and failure to obey a lawful general regulation.  His punishment for these offenses was a forfeiture of $75.00 and a reduction to private (E-2) which was suspended.

7.  On 22 February 1972, while serving at Fort Carson, the applicant accepted NJP for being AWOL from 7 February 1972 through 15 February 1972.  His punishment for this offense was extra duty for 14 days.

8.  The medical treatment records in the applicant’s official military personnel file are void of any treatment records related to treatment for hand or wrist injuries or any other injuries resulting from a fall from a helicopter and there are no medical records that indicate the applicant was suffering from a disabling medical or mental condition at the time of his discharge.  The record does contain a Standard Form 88 (Report of Medical Examination), dated 6 October 1972, which documents the applicant’s separation physical examination.

9.  The 6 October 1972 Standard Form 88 contains a normal clinical evaluation in upper extremities which includes the hands and wrists and shows the examining physician determined the applicant was medically qualified for separation/retention.  There are no disabling conditions noted on the examination.

10.  On 12 December 1972, a DD Form 458 (Charge Sheet) was prepared that preferred a court-martial charge against the applicant for two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 23 August 1972 through on or about 29 September 1972 and from on or about 13 October 1972 through on or about 15 November 1972.

11.  On 18 December 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances that could have led to a bad conduct or dishonorable discharge, the nature and effects of a UD, and of his right to submit statements in his own behalf.  Subsequent to receiving this counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).

12.  In his request for discharge, the applicant confirmed he had not been subjected to coercion and acknowledged that if his request were approved, he would likely receive a UD.  He also acknowledged that he had been advised of the possible effect of a UD and understood that he would be deprived of many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under Federal and State law.  He further acknowledged that he understood he could expect substantial prejudice in civilian life as a result of receiving a UD.  He also elected to submit a statement in his own behalf.

13.  In his statement, the applicant indicated he was getting out because of Army pay, the damn lifers, and he could not adjust.  He further indicated he could not be rehabilitated and indicated that the type of discharge he received did not matter as long as he was out.

14.  On 11 March 1973, the separation authority approved the applicant’s request for discharge for the good of the service and directed the applicant be reduced to the lowest enlisted rank and that he receive a UD.  On 6 April 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 2 years, 6 months, and 17 days of creditable active military service and that he accrued 98 days of time lost due to AWOL.

15.  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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  At the time of the applicant's discharge the regulation provided for the issuance of a UD for members whose service was characterized as UOTHC.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

17.  Chapter 3 of Army Regulation 635-40 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

18.  Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical retirement based on hand and wrist injuries he suffered in a fall from a helicopter while serving in the RVN was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

3.  The medical evidence of record fails to show the applicant was ever treated for or that he suffered from a disabling medical or mental condition that would have rendered him unfit for further service or that would have supported his separation processing through the PDES.

4.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20090003206



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ABCMR Record of Proceedings (cont)                                         AR20090003206



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