IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090005634 


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 an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that at the time of his separation, he was not given the opportunity to provide medical documents from Homestead Air Force Base hospital and Fort Stewart hospital.  The medical documents would have shown that he was on a medical hold status and he should have been separated for disability.  He adds that since his discharge he has led a model life in that he completed his Associate and Bachelor of Science degrees as well as a Doctor of Optometry degree, raised a family, and he has received numerous awards and recognition certificates for his outstanding reputation and performance.  He concludes that although he was on convalescent leave and should have gone back to the hospital at the time, the information on his charge sheet should have reflected that mitigating circumstance.

3.  The applicant provides, in support of his request, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 October 1989; a copy of his DA Form 2-1 (Personnel Qualification Record; a copy of his separation packet; a copy of his resume; copies of his college diplomas; copies of certificates of recognition; copies of certificates of training and/or military diplomas; and copies of various medical reports, charts, consults, and treatment records dated on miscellaneous dates throughout his military career.



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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 22 April 1987.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  The highest rank/grade the applicant attained during his military service was private (PV2)/E-2.

3.  The applicant's records further show he was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Grenade Bar, and the Parachutist Badge.

4.  On 16 February 1988, the applicant was admitted to the Army Hospital at Fort Stewart, GA due to an earlier injury.  He underwent various medical examinations, evaluations, X-rays, and therapy.  His final assessment was that of chronic low back pain.  He was placed on convalescent leave for a period of 4 weeks, effective 14 March 1988, with instructions to return on 11 April 1988.  He returned to the hospital from convalescent leave on 11 April 1988 and he was returned to duty with instructions to return to the clinic in six weeks.

5.  On 12 April 1988, the applicant failed to return to his unit.  He was accordingly reported in an absent without leave (AWOL) status on that date and he was subsequently dropped from the rolls (DFR) of the Army on 12 May 1988.  He surrendered to military authorities at Fort Knox, KY on 12 June 1989.

6.  On 15 June 1989, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 12 April 1988 to on or about 12 June 1989.  


7.  On 15 June 1989, 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 or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of 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 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service - in lieu of trial by court-martial.

8.  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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 27 June 1989, the applicant’s immediate and intermediate commanders recommended approval of the applicant’s separation with the issuance of an under other than honorable conditions discharge.  

10.  On 7 July 1989, 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 under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  On 5 October 1989, the applicant was discharged accordingly.  The DD Form 214 he was issued 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 1 year, 3 months, and 14 days of creditable active military service and he had 426 days of lost time.

11.  There is no evidence in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.  

12.  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.

13.  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.

14.  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 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

15.  Paragraph 3-1 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find 
that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge.  

2.  With respect to the applicant's medical condition at the time, the evidence of record shows that the applicant was assessed to have had low back pain.  Upon his return to the clinic on 11 April 1988, he was medically evaluated and he was found medically capable of performing his military duties and training with instruction to return to duty.  There is insufficient evidence to show his medical condition would have warranted his referral to the PDES.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been medically separated.

3.  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 applicant’s rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's military diplomas and/or training, his post-discharge academic success, and his positive contributions to the community are noted.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge.  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 did not submit evidence that would satisfy this requirement.

5.  Based on the applicant’s record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions  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.



      _________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)                                         AR20090005634



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005634



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1