IN THE CASE OF:	  

		BOARD DATE:	        4 August 2009

		DOCKET NUMBER:  AR20090006578 


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 that his undesirable discharge (UD) be changed to a medical discharge.

2.  The applicant states that he never received a trial or had any defense “to this nature.”  He was told he was being discharged under honorable conditions (general discharge) and he would lose his benefits.

3.  The applicant provides two pages of an investigating officer's (IO) report which show the IO found that the applicant went absent without leave (AWOL) because he was a chronic bed wetter and the men in his unit laughed at him because of his bed wetting.

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 that he was inducted in the Army on 7 February 1968 and was awarded the military occupational specialty of general duty Soldier. 

3.  The applicant was AWOL from on or about 21 April to 18 May 1968, 22 May to 7 July 1968, 12 to 30 July 1968, and 12 August 1968 to 27 March 1969.  He was confined from 23 April 1969 to the date of his discharge.

4.  The applicant was convicted by a special court-martial of being AWOL from 21 April to 19 May 1968 and 22 May to 8 July 1968.  The sentence was approved on 31 July 1968.

5.  On 15 April 1969, court-martial charges were preferred against the applicant for being AWOL from 12 August 1968 to 28 March 1969.

6.  On 1 May 1969, the applicant was given a physical and psychiatric examination and while he was diagnosed with a passive-dependent personality disorder and enuresis, he was determined medically qualified for retention.

7.  On 25 April 1969, the applicant requested discharge in lieu of court-martial for the good of the service.  In that request he acknowledged he understood that "I may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate."  He also acknowledged that "Prior to completing this form, I have been afforded the opportunity to consult with appointed counsel, or military counsel of my own choice . . ."  The applicant's request for discharge was countersigned by an officer of the Judge Advocate General’s Corps.

8.  The applicant's request was approved by the appropriate authority.  Accordingly, on 12 June 1969, the applicant was given an undesirable discharge under the provisions of Army Regulation 635-200 (Enlisted Separations) Chapter 10 (while the applicant's DD Form 214 erroneously shows his discharge under Army Regulation 635-212, his Separation Program Number (SPN) indicates his discharge was accomplished under the provisions of Army Regulation 635-200).  He had completed 4 months and 5 days of creditable service.

9.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

10.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was determined to meet medical retention standards.  As such, he was not entitled to be considered for a medical discharge.

2.  The applicant was, in fact, provided counsel, as evidenced by his statement to that effect on his request for discharge and his counsel's signature on that request.

3.  The applicant was not given a trial because he requested discharge in lieu of trial by court-martial.

4.  The available evidence does not indicate the applicant was told he would receive a general discharge.  Further, he acknowledged that he could receive an undesirable discharge in his request for discharge.

5.  The applicant's repeated, prolonged unauthorized absences warranted an undesirable discharge.

6.  While the Board sympathizes with the applicant in that he may have been experiencing a personal problem, he had many legitimate avenues through which to obtain assistance with his problem without committing the misconduct which led to his separation action.

7.  In view of the forgoing, 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)                                         AR20090006578



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006578



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1