IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090012306 


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 general, under honorable conditions. 

2.  The applicant states that he is a fifty year old black man formally diagnosed with multiple sclerosis (MS) in 1991.  He also states, in effect, he had problems with his knees while in the Army and believes the problems with his knees were related to his MS that had not yet been diagnosed.  Upon review of some of his x-rays the military doctor thought he had cancer.  He was scheduled for surgery on his right and left knees and then was scheduled for another surgery on his right knee.  When the fourth knee surgery was scheduled on his right knee, he did not want anymore surgeries, although he still did not know if he had cancer or not.  He went home for Thanksgiving and was supposed to have his fourth surgery when he returned.  There was also a lot of racial tension at that time and he felt overwhelmingly afraid to return to the Army to have the surgery.  He was too young to deal with the anxiety, so he did not go back.  

3.  The applicant also states that his absent without leave (AWOL) status was finally resolved with his discharge; however, the three knee surgeries he had have not been resolved.  He has not been successful in getting a civilian surgeon to re-operate on what was done by military surgeons.  He is seeking an upgrade of his discharge to finally resolve the knee issues that began when he was too young or mature to understand.  He has a chronic and severe disease and now understands a lot of the confusion, anxiety, etc., could have been from the lesions on his brain caused by the debilitating disease known as MS, not cancer.
4.  The applicant provides no additional documentation in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers statements and requests to the applicant and provides no additional documents in support of the applicant’s request.

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 Delayed Entry Program on 9 December 1976.  He enlisted in the Regular Army (RA) in pay grade E-1 on 12 June 1977, for 3 years.  He completed training and he was awarded military occupational specialty 76Y (unit supply specialist).  He was advanced to pay grade E-3 on 16 August 1978, the highest grade he held during his period of service.

3.  On 4 May 1979, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 19 April to 27 April 1979.  His punishment included a reduction to pay grade E-2, a forfeiture of $109.00 pay, and 14 days extra duty.  He did not appeal the punishment.  He was reduced to pay grade E-2 on 4 May 1979.

4.  On 31 May 1979, the applicant was punished under Article 15, UCMJ, for being AWOL from 4 May to 21 May 1979.  His punishment included a reduction to pay grade E-1, a forfeiture of $200 pay per month for 2 months, and 14 days extra duty.  He did not appeal the punishment.  He was reduced to pay grade E-1 on 31 May 1979.

5.  On 25 June 1979, the applicant was convicted by a special court-martial of two specifications of being AWOL from 4 to 8 June 1979 and from 8 to 19 June 1979.  He was sentenced to a forfeiture of $100.00 pay per month for five months and confinement at hard labor for four months.  The sentence was approved on 7 August 1979 and ordered duly executed.

6.  On 7 August 1979, the unexecuted portion of the approved sentence to confinement at hard labor for four months and the unexecuted portion of the approved sentence of a forfeiture of $100.00 pay per month for five months was suspended until 27 November 1979, at which time unless sooner vacated, the suspended portion of sentence would be remitted without further action.  The service of the sentence to confinement at hard labor for four months was deferred on 27 July 1979.

7.  On 17 October 1979, the applicant was reassigned to the Medical Holding Company, Fort Riley, Kansas, for Medical Evaluation Board (MEBD) processing and/or Physical Evaluation Board (PEB).

8.  On 23 October 1979, an MEBD convened and considered the applicant’s diagnoses of moderate degenerative joint disease, secondary to bilateral osteochondritis dissecans of the knees with multiple loose bodies and bilateral medial and lateral meniscal degeneration, probably related to diagnosis #1, treated with surgical excision.  The MEBD found the applicant medically unfit for further military service in accordance with current medical fitness standards and referred him to a PEB.  The findings and recommendations of the MEBD were approved 25 October 1979.

9.  On 24 October 1979, by verbal orders of the Commander, effective 17 October 1979, the unexecuted and executed portion of the applicant’s approved sentence was remitted.  

10.  On 29 October 1979, the applicant concurred with the findings and recommendation of the MEBD.  There is no evidence a PEB convened prior to the applicant going AWOL.

11.  The applicant was again reported AWOL on 27 November 1979 and dropped from the rolls on 27 December 1979.  

12.  On 2 January 1980, a DD Form 458 (Charge Sheet) was prepared by the Commander, Medical Holding Company, Fort Riley.  The applicant was charged with one specification of AWOL from 27 November 1979 to an unknown date.

13.  The applicant surrendered to military authorities on 25 April 1990.

14.  On 30 April 1990, a DD Form 458 was prepared by the Commander, Headquarters, US Army Field Artillery Center and Fort Sill, Oklahoma.  The applicant was charged with one specification of AWOL from 27 November 1979 to 25 April 1990.

15.  On 1 May 1990, 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 Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

16.  On 15 May 1990, the applicant’s unit commander recommended he be tried by a special bad conduct discharge court-martial.  On the same day, the unit commander stated that the applicant’s request was administratively correct and met the requirements for discharge under the provisions of Army Regulation 
635-200, chapter 10.  The unit commander also stated the applicant was charged with an AWOL of 3,802 days and surrendered to military authorities.  The Soldier had become disillusioned with the military and retention of that individual was not in the best interest of the Army.  He recommended approval of the applicant’s request and issuance of a discharge under other than honorable conditions.

17.  On 17 May 1990, the Criminal Law Division found no legal objections to the further processing of the unit commander’s recommendations.  

18.  On 17 May 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 be issued.

19.  The applicant was discharged on 15 June 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 2 years, 4 months, and 16 days net active service.  He was also credited with lost time from 6 to 12 December 1977, 19 to 26 April 1979, 14 to 20 May 1979, from 4 June to 27 July 1979, and from 27 November 1979 to 24 April 1990.

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

21.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

22.  Army Regulation 635-200, paragraph 3-7b, provided 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.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, chapter 4-3, specified that an enlisted Soldier could not be referred for or continue disability processing when action had been started under any regulatory provisions which authorized a characterization of service of under other than honorable conditions.  If the case came within the foregoing limitation, the commander exercising general court-martial jurisdiction over the Soldier could abate the administrative separation.  

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 contentions have been noted.  The evidence shows that the applicant was twice punished under Article 15 for AWOL in excess of 5 days on each specification and convicted by a special court-martial of two specifications of AWOL.

3.  The evidence also shows that in October 1979 an MEBD considered the applicant’s diagnoses of moderate degenerative joint disease and bilateral medial and lateral meniscal degeneration.  He was found medically unfit for further military service and referred to a PEB.  Prior to a PEB convening, he departed AWOL on 27 November 1979.  In April 1990, he surrendered to military authorities and 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.

4.  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 medical conditions he was having before or after his period of AWOL.  He had been referred to a PEB for further processing and he elected to go AWOL.  In accordance with regulatory guidance based on his issuance of a discharge under other than honorable conditions he was no longer eligibility for continued disability processing.  It is concluded that based on the incompletion of his medical processing, the applicant did not meet the eligibility to be separated or retired because of physical disability.  He was separated based on his request to be for the good of service in lieu of court-martial.

5.  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, discharge.

6.  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.

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.  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)                                         AR20090012306



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ABCMR Record of Proceedings (cont)                                         AR20090012306



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