IN THE CASE OF:	  

		BOARD DATE:	       27 October 2009

		DOCKET NUMBER:  AR20090008612 


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 general discharge be changed to a medical retirement.

2.  The applicant states that he always served on active duty with due diligence until he was injured.  He was then discriminated against and made to feel like he was no longer needed.  He was then falsely accused of incidents and slandered which resulted in him becoming depressed.

3.  The applicant continues that while on convalescent leave after major surgery he was accused of not taking a urinalysis.  He concludes that he has suffered enough and did not do anything to warrant being treated in this manner.

4.  The applicant provides excerpts from his military records.

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 entered active duty in the U.S. Army Reserve Active Guard Reserve Program on 24 January 1999 with 1 year, 3 months, and 10 days of prior active service and 8 years, 2 months, and 4 days of prior inactive service.

3.  On 29 September 2003, authority was granted to retain the applicant, a staff sergeant, on active duty for completing a physical evaluation board.

4.  On 18 December 2003, court-martial charges were preferred against the applicant for disrespect towards a major by arguing with the major about having to return to duty and contemptuously hanging up the phone on the major, for disobeying a lawful command from a major to submit a urine sample, for disobeying a lawful command by a major to attend an afternoon medical appointment, for disobeying a lawful order from a major to present appointment slips for any medical appointment at least 48 hours prior to the appointment, and for disobeying a lawful order from a master sergeant to not leave the testing area before submitting a urine sample.

5.  On 16 April 2004, the applicant requested discharge in lieu of trial by court-martial for the good of the service.  In his request the applicant stated, "I acknowledge that I understand the elements of the offenses charged and am guilty of one or more of the charges against me or of a lesser included offenses therein contained which also authorize the imposition of a bad conduct or dishonorable discharge.  Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

6.  The applicant's request was approved by the appropriate authority.  Accordingly, on 3 June 2004 the applicant was discharged under other than honorable conditions (UOTHC).

7.  On 12 August 2005, the Army Discharge Review Board (ADRB) upgraded the applicant's UOTHC discharge to a general discharge.  However, the ADRB voted to not change the reason and authority for the applicant's discharge.

8.  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.

9.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been initiated may not be processed for separation due to physical disability.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant admitted guilt to an offense punishable by a bad conduct or dishonorable discharge in his request for discharge for the good of the service.  If the applicant was innocent of the offenses, it is presumed that he would have taken the opportunity to prove his innocence at a court-martial.

2.  Since the applicant was pending separation UOTHC, he was not eligible to be considered for separation due to physical unfitness.  The fact that the ADRB upgraded his discharge does not alter this fact.  The ADRB did not change the reason and authority for his discharge.

3.  As such, the evidence shows that the applicant was properly discharged for the good of the service in lieu of trial by court-martial and there is no reason to change his discharge to a medical retirement.

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)                                         AR20090008612



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ABCMR Record of Proceedings (cont)                                         AR20090008612



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