IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011461 


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, upgrade of his under other than honorable conditions discharge to an honorable or a medical discharge.

2.  The applicant states that he was not properly evaluated or treated even after numerous requests for help.  He was unaware of such procedure for requesting a correction and once the facts are reviewed, the Board will see this was and is the right thing to do.  He also states, in effect, that his military and civilian medical history, honorable service, and military and civilian achievements warrant an upgrade his discharge to an honorable discharge.

3.  In support of his application, the applicant provides copies of his DA Form 2-1 (Personnel Qualification Record - Part II), a DD Form 458 (Charge Sheet), his DD Form 214 (Certificate of Release or Discharge from Active Duty), letters from the Department of Veterans Affairs (VA) and the National Personnel Records Center (NPRC), statements of his military and civilian medical history, his medical appointment profile, statements of his honorable service and military and civilian achievements, four academic merit certificates and his Associate in Applied Science Degree transcript, and his children’s birth certificates.

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 he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 30 October 1992.  He was discharged from the USAR DEP on 2 December 1992 and he enlisted in the Regular Army (RA) in pay grade E-1 on 3 December 1992, for 4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 75B (Personnel Administrative Specialist).  He served in Korea from 25 September 1995 to 25 September 1996.  He was promoted to pay grade E-5 on 1 February 1996.

3.  The applicant was honorably discharged on 17 July 1997 for the purpose of immediate reenlistment.  He reenlisted on 18 July 1996 for 3 years.

4.  The applicant was reported absent without leave (AWOL) on 17 June 1997 and he was dropped from the rolls (DFR) of the Army on 17 July 1997.  He was returned to military control on 7 October 1997.

5.  On 20 October 1997, a DD Form 458 was prepared by the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from his unit from 17 June 1997 to 8 October 1997.

6.  On 20 October 1997, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an under other than honorable discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 4 December 1997, the applicant’s commander recommended he be discharged under other than honorable conditions.

8.  On 19 December 1997, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a discharge under other than honorable conditions be issued to him and that the applicant be reduced to pay grade E-1.

9.  The applicant was reduced to pay grade E-1 on 19 December 1997.

10.  An ATZK-PM Form 4939 (Characterization of Service Checklist for Administrative Discharge Actions), Number 11, shows no medical or other data meriting consideration in the medical evaluation system.  His military medical records are not available.  There is no evidence to show he was referred to a medical evaluation board or a physical evaluation board for consideration of any medical condition during his period of active duty.

11.  The applicant was voluntarily discharged on 5 February 1998, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with his service characterized as under other than honorable conditions.  He was credited with 4 years, 10 months, and 10 days net active service this period and lost time from 17 June 1997 through 7 October 1997 due to AWOL.

12.  On 31 August 2006, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

13.  On 22 October 2008, the VA advised the applicant that a review of his record revealed no medical documents; therefore, his request was referred to the NPRC for response.  On 23 February 2009, the NPRC, St. Louis, MO, advised the applicant that due to the year he was released from the military his health record was not retired to that center and it was retired to the VA Records Management Center.

14.  On an unspecified date, the VA advised the applicant that the period of active duty he had from 3 December 1992 to 2 December 1996 [sic] (his first obligated period of service) was served honorably and his entitlement to all VA benefits was established based on this period of service.  The VA also advised that his period of active duty from 3 December 1996 [sic] to 5 February 1998 was issued under conditions other than honorable and based on that period of service he did not qualify for any benefits except possible medical treatment for any disability or disabilities incurred or aggravated during active service.

15.  The applicant submitted statements pertaining to his military and civilian medical history, his honorable military service, and his military and civilian achievement.  He also submitted his four academic merit certificates, his Associate in Applied Science Degree transcript, and his children’s birth certificates.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

18.  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.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

20.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  
DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge or a change to a medical discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant completed a period of honorable service from 3 December 1992 to 17 July 1996.  During his second period of service he was charged with one specification of AWOL from 17 June through 7 October 1997.  Upon his return to military control he voluntarily requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  Therefore, the evidence clearly shows the applicant understood the reason for his discharge and the type of discharge that he would be receiving.

3.  Contrary to the applicant's contentions, he has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting an honorable discharge.

4.  The applicant's contention that he should have received a medical discharge has also been noted.  However, there is an absence of medical documentation to support his contention.  His separation checklist shows that there was no medical or other data meriting consideration in the medical evaluation at the time of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request for a medical discharge.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090011461



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ABCMR Record of Proceedings (cont)                                         AR20090011461



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