IN THE CASE OF:	  

		BOARD DATE:	       6 AUGUST 2009

		DOCKET NUMBER:  AR20090006633 


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 discharge under other than honorable conditions be upgraded to honorable or general under honorable conditions.

2.  The applicant states that he sought assistance for a medical injury that occurred on night training maneuvers during an airborne drop.  He contends that he was not allowed to seek medical assistance until after the completion of his unit training exercise.  By that time, his foot and ankle injury started to heal incorrectly and it required subsequent surgery.  He indicates that his injury made him unqualified for continued jump status and that he was pending reclassification into another military occupational specialty (MOS) in a non-airborne unit.  He states that his immediate supervisor treated him with disrespect and violated his physical profile.  He sought equitable relief using poor judgment by going absent without leave (AWOL) until his medical condition improved.  He points out that he never received any rehabilitation or counseling for his physical or mental condition and that he did not intend to go AWOL.  He states that it is his belief that if his physical and mental issues had been properly addressed at the time and if he had received effective legal counseling he would have received a positive outcome at a court-martial.

3.  The applicant provides a medical service record and service personnel records in support of his application.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 September 1999 for a period of 4 years.  He successfully completed one-station unit training in MOS 12B (combat engineer).

2.  On 9 November 2000, the applicant went AWOL and returned to military control on 17 January 2001.

3.  The applicant provided a Standard Form 513 (Medical Record Consultation Sheet), dated 20 January 2001, from the Chief of Podiatry at Fort Sill, Oklahoma, which shows that he was treated for left foot pain and swelling.  It states, in pertinent part, that he sustained a fracture to his left foot 6-7 months earlier at Fort Bragg, North Carolina, that he underwent surgery, and that he was being chaptered out of the military via chapter 10 of Army Regulation 635-200 (Personnel Separations).  The Chief of Podiatry also recommended that the applicant be medically boarded out of the military via a medical evaluation board (MEBD) or undergo a physical examination to document his injury to apply for Department of Veterans Affairs benefits.

4.  There is no evidence in the available records which shows the applicant was referred by a military treatment facility (MTF) to an MEBD.

5.  On 23 January 2001, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

6.  On 24 January 2001, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

7.  On 4 October 2001, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 26 October 2001 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 1 year, 11 months, and 4 days of creditable active service with 70 days of lost time due to AWOL.

9.  On 22 August 2007, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

10.  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.

11.  Army Regulation 635-200 states, in pertinent part, that, except in separation actions under chapter 10, disposition through medical channels takes precedence over administrative separation processing.

12.  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.

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 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 4-7 (Referral by commanders of MTFs) of this regulation states that commanders of MTFs who are treating Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions pertaining to his medical injury and the recommendation from the Chief of Podiatry at Fort Sill, Oklahoma for an MEBD were noted.  However, there is no evidence in the available records which shows the applicant was referred by the MTF to an MEBD as required by the governing regulation.  In any case, the governing regulation states that disposition through medical channels does not take precedence over chapter 10 separation processing.

2.  The applicant's contention that he never received any rehabilitation or counseling for his physical or mental conditions was noted.  However, evidence of record shows he underwent surgery for his ankle/foot injury.  There is no evidence to show he was having psychiatric problems in 2001 that interfered with his ability to perform his military duties or that were the underlying cause for the misconduct that led to his discharge.  In addition, there is no evidence of record which shows he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.

3.  Although the applicant contends that he did not receive effective legal counseling, evidence of record shows that he consulted with counsel on 24 January 2001 and voluntarily requested discharge in lieu of trial by court-martial.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  Since the applicant’s record of service included 70 days of lost time for which special court-martial charges were preferred, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge 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)                                         AR20090006633



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ABCMR Record of Proceedings (cont)                                         AR20090006633



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