IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011930 


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 general, under honorable conditions discharge.

2.  The applicant states, in effect, that if facts had been known about his physical condition in 1989 to 1990, this would have led to a more favorable discharge.

3.  The applicant provides, in support of his application, copies of his younger brother’s and stepfather's obituaries, showing they died on 22 February 1986 and 9 February 1989, respectively; a plain page printout of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his 2008 magnetic resonance lower extremities final report, evaluated on 11 March 2008; four character reference letters dated between 11 August 2004 and 1 October 2008; his DA Form 2823 (Sworn Statement), dated 23 June 2009; and two photographs of himself.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, upgrade of the applicant’s discharge.

2.  Counsel states, in effect, that the unique facts and effects of the applicant’s turbulent childhood, his unique physical malady, and the fact that none of his Army supervisors knew any of these facts when he departed absent without leave (AWOL) led to the applicant's under other than honorable conditions 
discharge.  However, if any of these facts had been known the applicant would have been discharged under honorable conditions, if not an honorable discharge itself.  He also states that the applicant unwittingly signed documents in 1990 agreeing to a discharge in lieu of court-martial.  The applicant assumed for 
17 years that his discharge was either honorable or general, under honorable conditions.  When he completed his medical studies and needed evidence of his military record, he was shocked to discover that his discharge was other than honorable.  This discovery occurred in February 2007, within the three-year window appropriate for this application.

3.  Counsel further states, in effect, the applicant’s childhood involved events, such as a broken marriage, divorce, his mother’s new boyfriend, and a subsequent marriage that brought an abusive stepfather into the home.  When the applicant was fifteen, his baby brother accidently killed himself with a loaded handgun left in a cabinet where he could reach it while the applicant was out of the room briefly.  It’s difficult to imagine the trauma produced by such an event.  The applicant suffered the death of his brother in 1982 and also his stepfather became increasingly abusive to him and his mother.  The applicant refused to move out, remaining at home to protect his mother until the day came that few can imagine.  His description of the events of that day conveys the horror and trauma of his stepfather’s abuse and the attack that specifically led to the applicant killing his stepfather in self-defense.  It’s nearly impossible to imagine a 17 year old high school senior trying to achieve a normal life with the “buzz” all around him, “that’s the boy who killed his stepfather.”  The applicant left the turmoil and gossip behind by joining the Army.  He experienced difficulty running and road marching.  He didn’t understand the injury he received and couldn’t face his peers and supervisors, so he left his unit, went home, and turned himself in to military authorities approximately 40 days later.  It’s significant that his leg problem was a pre-existing aliment that went undiagnosed by any military doctors during his admittedly limited military service.  Years later, orthopedic surgeons diagnosed the applicant with chronic anterior compartment syndrome and informed him of likely implications for his long term health.

4.  Counsel also states, in effect, that the applicant surely would have been treated differently if medical personnel had diagnosed his physical problem.  Besides completing first college and then medical school, the applicant is married with two children and the object of great affection and admiration.  More importantly, he is not the youth who naively signed away his military service to expedite his departure from the Army, mostly as the result of a pre-existing malady undiagnosed by Army doctors.

5.  Counsel provides no additional documentation in support of the applicant’s application.
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 5 April 1989.  A Standard Form
(SF) 88 (Report of Medical Examination), dated 5 April 1989, shows he was found qualified for enlistment.  An SF 93 (Report of Medical History), dated
5 April 1989, shows the applicant stated that he was in good health, he was not on any current medications, he was allergic to bee stings, and he broke his left wrist at age 12.  He had had no problems since.

4.  The applicant was discharged from the USAR DEP on 24 May 1989 and he enlisted in the Regular Army (RA) in pay grade E-1 on 25 May 1989, for 4 years. He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

5.  The applicant was reported AWOL on 25 October 1989 and he was dropped from the rolls (DFR) of the Army on 24 November 1989.  He surrendered to military authorities on 6 December 1989 and he was assigned to the Special Processing Company/Personnel Control Facility at Fort Knox, KY.

6.  A U.S. Army Armor Center Form 2722 (Medical Examination for Separation Statement of Option), dated 7 December 1989, shows the applicant did not desire a separation medical examination.

7.  The applicant’s available military medical records contain no evidence he received any medical treatment during his period of military service, other than on one occasion in July 1989 for dizziness, headaches, and weakness.

8.  On 12 December 1989, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox.  The applicant was charged with one specification of AWOL from 25 October 1989 to 6 December 1989.

9.  On 12 December 1989, 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 and he did not desire further military service.  He also acknowledged that he could be discharged under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 16 January 1990, the company commander and commander, U.S. Army Personnel Control Facility, recommended approval of the applicant’s request.

11.  On 30 January 1990, 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 he issued and reduction to pay grade E-1.

12.  The applicant was discharged on 5 March 1990 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.  His service was characterized as under other than honorable conditions.  He was credited with completing 8 months of net active service.  He had lost time due to AWOL from 25 October through 5 December 1989 and excess leave from 12 December 1989 through 5 May 1990.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  The applicant further submitted copies of his 2008 magnetic resonance lower extremities final report which reported he had a history of atrophy of the anterior compartments of the legs and had knee surgery about 10 years ago.  He also submitted four character reference letters attesting to his abilities as a medical student, chief resident, and his growth as a doctor, husband, and father. The applicant further submitted a sworn statement along with photographs of himself.  



15.  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.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's and counsel’s contentions have been noted.  The evidence shows that the applicant enlisted in the RA on 25 May 1989 and he departed AWOL on 25 October 1989.  Upon his return to military control, after being charged with AWOL, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and he also acknowledged he could be discharged under conditions other than honorable.

3.  Neither the applicant nor counsel has submitted sufficient evidence to mitigate the applicant’s reasons for going AWOL or to show that he was denied any assistance from his chain of command with any mental or physical 
problems he was having before or after his period of AWOL.  The evidence shows he was well aware of the reasons charges were preferred against him on 12 December 1990 and at that time he elected to be discharged.  Even if he was enduring any medical or personal problems, it was his responsibility to seek assistance, and there is no evidence that he did so.

4.  Neither the applicant nor his counsel have provided any evidence or a convincing argument to show why 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 a general, under honorable conditions or a fully honorable discharge.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  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.

7.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

8.  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)                                         AR20090011930



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ABCMR Record of Proceedings (cont)                                         AR20090011930



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