IN THE CASE OF:	

		BOARD DATE:	 29 December 2009 

		DOCKET NUMBER:  AR20090012170 


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 that his under other than honorable conditions discharge be upgraded to a general discharge, under honorable conditions, or an honorable discharge.

2.  The applicant states he believes the discharge he received was inequitable because he received an injury during basic training and he was not given the proper medical treatment.  He also states that this led him to seek medical treatment from a civilian doctor.  He adds that his character of service is starting to affect his health and career path.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), two Statements in Support of Claim, and three letters.

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 enlisted and entered active duty in the Regular Army on
9 September 1993.  Upon completion of training he was awarded military occupational specialty 12B (Combat Engineer).

3.  A DA Form 4187 (Personnel Action), dated 24 February 1994, shows the applicant's duty status was changed from present for duty to convalescent leave, effective 1600 hours, 21 January 1994.

4.  A DA Form 4187, dated 24 February 1994, shows the applicant's duty status was changed from convalescent leave to absent without leave (AWOL), effective 0001 hours, 20 February 1994.

5.  A DA Form 4187, dated 23 March 1994, shows the applicant's duty status was changed from AWOL to dropped from unit rolls (DFR), effective 0001 hours, 22 March 1994.

6.  A Memorandum for Record, dated 23 March 1994, subject:  Missing Medical Records, shows the applicant's commander documented that the applicant was carried in a DFR status as of 22 March 1994.  The applicant had taken his medical records from the Troop Medical Clinic (TMC) to go to the Orthopedic Clinic at the hospital, he did not return his medical records to the TMC, nor did the hospital have his records.

7.  A DD Form 458 (Charge Sheet), dated 6 April 1994, shows the Commander, B Battery, Personnel and Support Battalion, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, preferred charges against the applicant for being AWOL from his organization from 20 February to 4 April 1994.

8.  An AF Form 1168 (Statement of Suspect/Witness/Complainant), dated 4 April 1994, shows the applicant was counseled concerning an Article 15 under the Uniform Code of Military Justice due to being suspected of being AWOL.  The applicant stated he was injured during basic training and was recycled several times despite his injury.  He also stated he was denied medical leave, and several of his requests to be discharged from the Army were also denied.  He added that he was placed on 30 days of convalescent leave on 21 January 1994, and he reported to Fort Irwin, California, at the end of his leave on 19 February 1994.  However, he was instructed to return to Fort Leonard Wood, Missouri.  He concluded by stating, "[t]he reason is my leg still hurts and I just do not want any part of the Army, and I would like to be out of the service."

9.  On 7 April 1994, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He also acknowledged that he understood that advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge; however, the document indicates that statements in his own behalf were not submitted with his request.

10.  The applicant's separation packet shows that a captain serving in the Judge Advocate General's Corps certified with his signature he had advised the applicant of the possible effects of an under other than honorable discharge and of the procedures and rights available to him.

11.  The immediate commander recommended approval of the applicant's request for discharge.

12.  On 12 May 1994, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The separation authority also directed the applicant be discharged with an under other than honorable conditions discharge.

13.  The applicant's DD Form 214 shows he was discharged on 2 June 1994 in accordance with the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and his service was characterized as under other than honorable conditions.  At the time he had completed 7 months and 10 days of net active service this period.  Item 29 (Dates of Time Lost During This Period) shows the applicant had time lost from 20 February to 4 April 1994.

14.  In support of his application, the applicant provides the following documents:

   a.  A letter written by Joseph G. M___, Orthopedic Specialist, Yorba Linda, California, dated 5 January 1994, in which he stated his impression that the applicant had stress fractures of the left distal tibia and left second metatarsal.  He also recommended that the applicant make a full recovery prior to starting basic training again.
   b.  A letter written by the applicant's parents to Congressman Jay K__, dated 10 January 1994, in which they outline the applicant's difficulties in basic training due to stress fractures.  They also provide a timeline of the applicant's actions while on leave during early 1994, including his examination by a civilian Orthopedic Specialist; his attempt to receive medical treatment at Fort Irwin, California; their acknowledgement that the applicant's commander advised that the applicant would be given a complete physical; telephonic contact from the applicant's first sergeant with instructions for him to return to his unit at Fort Leonard Wood, Missouri; and the parent's concern [expressed to the Congressman] that the applicant's physical problem be addressed by Army medical personnel.

   c.  Two statements by the applicant's father and mother, dated 26 May 2009, both of which contain essentially the same information.  The statements provide a summary of the applicant's experience during basic training as a result of his injury, his subsequent examination by the civilian doctor while at home on leave, and the difficult decision the applicant made not to return to his unit at the end of his convalescent leave.

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

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 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, or is otherwise so meritorious that any other characterization would be clearly 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he received an injury during basic training, he was not given the proper medical treatment, and this led him to seek medical treatment from a civilian doctor.  He adds that his character of service is now starting to affect his health and career path.

2.  The applicant's contention that he was not given proper medical treatment while in the Army was carefully considered:

   a.  Records show the applicant's commander documented that the applicant had taken his medical records from the TMC to go to the Orthopedic Clinic at the hospital.  (It is noted that the applicant did not return his medical records to the TMC, and the hospital did not have his records at the time the applicant was put in a DFR status on 22 March 1994.)

	b.  The evidence of record shows the applicant acknowledged in a statement that he was granted 30 days convalescent leave on 21 January 1994.  

   c.  The evidence of record also shows that while the applicant was at home on leave in January 1994, his commander assured the applicant's mother that the applicant would be given a complete physical upon his return to the unit.

   d.  Thus, in view of the foregoing, the applicant's contention that he was not given proper medical attention while he was in the Army appears hollow.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by
court-martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offense that led to his discharge far outweighs his overall record of service during the period 9 September 1993 through 19 February 1994 (i.e., the date prior to the applicant's extended period of AWOL).  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.
4.  The applicant's contentions that the character of service affecting his health and career path were carefully considered; however, they are insufficient reasons to be used as a basis for upgrading his discharge.

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 this requirement.

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)                                         AR20090012170



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ABCMR Record of Proceedings (cont)                                         AR20090012170



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