IN THE CASE OF:	  

		BOARD DATE:	       29 October 2009

		DOCKET NUMBER:  AR20090009030 


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 reconsideration of the Board's denial of his request for an honorable discharge.

2.  The applicant states, in effect, that after completing his basic and infantry training, he was injured in an automobile accident in Gadsden, AL, while on an authorized pass from Fort Polk, LA.  He states he fractured his head and needed stitches for a head wound.  After emergency treatment at a local hospital, he says he was taken to Fort McClellan Hospital in Anniston, AL, and then to Fort Polk. LA.  He states his condition got worse after his hospitalization with chronic neck pain, difficulty walking, and limited movement of his right arm.  He was given medication to relax his muscles and a permanent profile with limited activity that included no strenuous duties.  During this process, he received orders to attend his military occupational specialty (MOS) course.

3.  The applicant continued by stating, in effect, that he tried to tell his commander that he was not able to do the tasks of a mechanic because of his injuries that resulted from his car accident.  He states his sleep was impaired due to the pain.  He often fell asleep early in the morning, which led to him missing morning formations.  He admits he was absent without leave (AWOL) and when he returned he was put in the stockade for 30 days.  After the stay in the stockade, he was sent to a special processing detachment and told to work in the kitchen.  He says he refused to work in the kitchen because he had a medical profile and the work was too strenuous.  He says he was sent to the stockade again where he encountered discrimination and feared for his life.  During his second stay in the stockade, he states he was accused of starting a riot.  Upon his return to the special processing detachment, he was told to work in the kitchen, this time folding napkins.

4.  He continues by saying, in effect, he could not fold napkins all day because he could not lift his right arm due to his compressed vertebra.  Within a few weeks, his commander asked him if he wanted a discharge from the Army.  He agreed to the discharge, and at 21 years old his undesirable discharge did not bother him.

5.  He asks that the Board review his medical records for he believes he was given the wrong type of discharge.  In effect, he believes he should have been medically separated and issued an honorable discharge because of his car accident that happened while serving on active duty.

6.  The applicant provides a personal statement in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080014585 on 4 December 2008.

2.  The applicant presents a new argument which requires the Board to reconsider his case.  The applicant's new argument is that his car accident, which occurred while he was on pass from his post, is the significant contributing factor in why he could not perform his basic Soldier or MOS duties.  He states he was not shirking his responsibilities or being discreditable in nature.  He was in pain and found it very difficult to perform the tasks that he was directed to perform.

3.  The applicant's military records show he was inducted into the Army of the United States and entered active duty on 20 January 1970.  He successfully completed basic and advanced individual training.  He was awarded MOS 63B (Light Wheeled Vehicle Mechanic).  The highest rank he attained during this period was private (PV2)/pay grade E-2.

4.  The applicant was reported by his unit as absent and in an AWOL status as of 5 April 1970.

5.  On 8 April 1970, the applicant was injured in a single-vehicle accident, he received emergency medical treatment, and he was admitted to the Holy Name of Jesus Hospital (a civilian hospital) in Gadsden, AL.

6.  On or about 9 April 1970, the applicant was transported from the civilian hospital in Gadsden, AL, and examined at the Noble Army Hospital at Fort McClellan, AL.

7.  On 15 April 1970, a Medical Service Corps officer in the rank of captain initiated a DA Form 2173 (Statement of Medical Evaluation and Duty Status) that shows the applicant was injured (severe laceration of scalp, multiple contusions and abrasions, and back injury).  Item 11 (Medical Opinion) of this form shows that the applicant was not under the influence of alcohol or drugs, that there were no witnesses, and that a city ambulance transported the applicant to the Holy Name of Jesus Hospital in Gadsden, AL, where he was admitted at approximately 2145 hours on 8 April 1970.

8.  DA Form 188 (Extract Copy of Morning Report), dated 22 April 1970, shows the applicant's duty status as follows:

	a.  on 5 April 1970, he departed AWOL at 1700 hours from Company B, 3rd Battalion, 5th Advanced Individual Training (AIT) Brigade, Fort Polk, LA;

	b.  on 8 April 1970, he was moved from AWOL status to surrendered at Holy Name of Jesus Hospital, Gadsden AL, at 2145 hours with scalp lacerations, a back injury, and the line-of-duty status undetermined;

	c.  on 9 April 1970, he was shown as in a hospital status at Holy Name of Jesus Hospital (civilian) and moved to Noble Army Hospital (military) at Fort McClellan, AL; and

	d.  on 14 April 1970, he was returned to duty from the U.S. Army Hospital, Fort McClellan, AL, to his unit of assignment at Fort Polk, LA.

9.  On 17 April 1970, an investigating officer was appointed to determine whether the applicant's injuries were incurred in the line of duty.

10.  On 27 April 1970, the applicant's unit commander completed Section II of DA Form 2173 stating the applicant was AWOL from 1700 hours on 5 April 1970 to 2145 hours on 8 April 1970.  The commander stated that the applicant's AWOL materially interfered with the performance of his military duty, that a formal line-of-duty investigation was required, and the applicant's injuries were considered as not having occurred in the line of duty.

11.  On 4 May 1970, the investigating officer initiated a DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status).  This form shows the applicant's medical diagnosis was a temporary disability due to severe laceration of scalp, multiple contusions and abrasions, and a back injury (unspecified).  The applicant's duty status was determined not to be in a present-for-duty status due to being AWOL, that his conduct (accident) was not due to his own misconduct or neglect, and that he was mentally sound.  The investigating officer's findings were that the applicant's injuries were not incurred in a line-of-duty status due to his being AWOL.  However, the investigating officer found that the applicant's injuries were not incurred due to his own misconduct.

12.  On 7 May 1970, the appropriate reviewing authority recommended approval of the investigating officer's findings.

13.  On 28 May 1970, the approval authority, acting on behalf of the Secretary of the Army, permanently approved the findings in accordance with Army Regulation 600-10 (The Army Casualty System).

14.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two separate occasions for being AWOL from 5 April 1970 to 8 April 1970 and from 24 May 1970 to 26 May 1970.

15.  On 12 September 1970, a psychiatrist at the Fort Polk Medical Department Activity examined the applicant.  The applicant was determined not to be mentally ill and was cleared for any action deemed appropriate by the command.  He recommended that the applicant be administratively separated for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge for Unfitness).

16.  Summary Court-Martial Order Number 22, published by Garrison Troop Command, U.S. Army Training Center, Fort Polk, Louisiana, dated 28 September 1970, shows the applicant was charged and subsequently found guilty of AWOL from 3 July 1970 to 28 July 1970.

17.  On 12 October 1970, the unit commander notified the applicant of his intent to initiate discharge action against him under the provisions of Army Regulation 635-212 for unfitness because of the applicant's record of frequent incidents of a discreditable nature with military authorities and an established pattern of shirking responsibility.  The applicant was advised that he had the right to a hearing before a board of officers, to submit a written statement in his own behalf, to be represented by counsel, and that he may waive these rights in writing.

18.  On 12 October 1970, the applicant signed a statement of waiver.  He acknowledged that he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, he elected not to submit statements in his own behalf, and further waived representation by counsel.  The applicant acknowledged that he might expect to encounter substantial prejudice in civilian life in the event he received a less than honorable discharge.  He also acknowledged that he understood he may be ineligible for many or all benefits as a Veteran under both Federal and state laws and he may expect to encounter substantial prejudice in civilian life if he was issued a less than honorable discharge.

19.  The appropriate separation authority approved the separation for unfitness and directed issuance of an Undesirable Discharge Certificate.

20.  Accordingly, on 5 November 1970, the applicant was discharged under the provisions of Army Regulation 635-212.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows his service was characterized as under other than honorable conditions.  The applicant had completed 8 months and 13 days of active duty service with 33 days of time lost due to being AWOL.

21.  Army Regulation 600-10, in effect at the time, provided in pertinent part the basic policies, responsibilities, and procedures for the efficient operation of the Army Casualty System to include reporting seriously ill, wounded, or injured Soldiers and establishing investigative requirements for deaths, injuries, or diseases, or when a Soldier's duty status is questionable.  A formal investigation is required when a death, injury, or disease is incurred while a Soldier is AWOL or in a desertion status for less than 4 months.  A complete and thorough investigation and report are required to determine entitlements to benefits under statutes administered by the Secretary of the Army, by the Veterans Administration, or other government agencies.

22.  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.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.  The disability must not have been incurred during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was on pass (approved leave of absence) from his unit when he had a car accident on 8 April 1970 and the injuries he sustained to his head, arm, and back interfered with his ability to perform his military duties.  He contends he was not shirking his duties and responsibilities when he refused to work, rather he had a physical profile and was not supposed to perform strenuous activities.

2.  Based on the evidence of record, the applicant was not on an authorized pass from his unit as he contends when he had his car accident.  His duty status was AWOL.  Through appropriate medical triage procedures, he was medically treated at the nearest civilian hospital, transported to the closest military medical treatment center, and then transferred to his installation of record in a patient status.  He was released from his post's military medical treatment center and returned to duty.  As he was in an AWOL status on the date of the accident, a formal line-of-duty investigation was required by regulation and appropriately completed.

3.  The result of this investigation shows the applicant's injuries were found to be not in the line of duty because he was in an AWOL status on the date of the accident.  As his injuries did not occur in the line of duty or when he was in an authorized absence status, he was not entitled to a medical evaluation board for disabilities arising from the accident.

4.  The applicant's record shows a consistent pattern of being AWOL during his brief enlistment period that began even before his accident.  As such, his record does show a pattern of shirking responsibility by his repeated unauthorized absences.  Therefore, he was appropriately separated for unfitness (failure to adapt to military environment and lifestyle).

5.  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 that requirement.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.


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 to amend the decision of the ABCMR set forth in Docket Number AR20080014585, dated 4 December 2008.



      ___________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)                                         AR20090009030



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ABCMR Record of Proceedings (cont)                                         AR20090009030



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