IN THE CASE OF:	

		BOARD DATE:	10 September 2009  

		DOCKET NUMBER:  AR20090008119 


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 under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he served his country very well and would have continued to do so if not for the accident and surgeries.  The military totally messed up his life.  After his accident, he was sent home.  He suffered from bad vision and amnesia.  He was in no condition to have been sent home.  Years later the trauma to his head and face caused him to develop a brain aneurism.  Now he has seizures and bad vision.  He has been living on social security disability.  He just wants his discharge to be corrected so he can live a better life and feel better about himself.  He did not deserve what he received.  He has total respect for the U.S. Government and its Armed Forces.  He wishes the same respect to be shown to him.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three pages of clinical records dated in March 1980 in support of his application.  He indicated that he had also attached two commendations, but they were not received.

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.  On 10 January 1978, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13B (Cannon Crewman).  He was subsequently assigned for duty at Fort Lewis, Washington.

3.  On 30 April 1979, the applicant was promoted to specialist four, pay 
grade E-4.

4.  On 11 December 1979, the applicant departed Fort Lewis for assignment in Europe.  On 23 January 1980, he was assigned to D Battery, 1st Battalion, 509th Infantry Regiment, in Italy.

5.  On 28 February 1980, the applicant was reassigned to the 11th Field Artillery Detachment in Italy.

6.  On 14 March 1980, the applicant was riding as a passenger in a car when it was involved in an accident.  He was admitted to the U.S. Army Hospital in Vicenza, Italy, with pain in his face, nose, and tissues surrounding the orbit of his left eye.  Subsequent x-rays showed that he had a nasal fracture and a zygomatic [bone below the eye] fracture.  On 21 March 1980, he was transported to the ophthalmologist in Frankfurt, Germany, for surgical treatment.  No further medical records are available for review.

7.  On 5 June 1980, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, absent without leave (AWOL), during the period from on or about 3 May 1980 to on or about 1 June 1980.

8.  On 6 June 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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.

10.  On 31 July 1980, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 794A (Discharge Under Other Than Honorable Conditions).  On 11 August 1980, the applicant was discharged accordingly.  He had completed a total of 2 years, 6 months, and 3 days of creditable active military service and had accrued 30 days of time lost due to AWOL.

11.  On 12 March 1992, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  On 30 January 1995, the ADRB voted to deny his request.

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, 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.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

14.  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.

15.  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 discharge should be upgraded to honorable because of his medical condition.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  The available evidence shows that the applicant suffered injuries from an automobile accident in March 1980.  However, there is no available evidence indicating that his medical condition was the proximate cause of his AWOL.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, 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)                                         AR20090008119



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008119



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1