IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012429 


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 his earlier request for correction of his under other than honorable conditions (UOTHC) discharge to a general, an honorable, or a medical discharge. 

2.  The applicant states that Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) requires the appointment of an officer to counsel Soldiers undergoing physical disability processing and that in his case, the Army did not do so.  Additionally, the same regulation states that for a Soldier who is found unfit, the Army must provide disposition of that Soldier according to law and regulation.  He also states that he has had severe mental illness from 1981 until the present time.  He also provides the following argument:

	a.  Individuals who are not qualified for continued service but the disqualification is waivable, are ineligible for reenlistment unless a waiver is granted.  The UOTHC discharge should not have been given when a member has started physical disability processing as shown on AR 635-40, AR 40-501 (Standards of Medical Fitness), and AR 40-3 (Medical, Dental, and Veterinary Care).  If during the first four months a Soldier is medically disqualified, this information must be provided to the Soldier to allow the Soldier to apply for a medical discharge.  A medical examination is required to see if a Soldier should receive a medical discharge instead of another type of discharge.  He was on a physical profile for more than 6 months and never received counseling during that period. 

	b.  Before taking action against a Soldier under section III, chapter 14, AR 635-200 (Personnel Separation) because of minor disciplinary infractions or a pattern of misconduct, the commander must ensure that the Soldier receives adequate counseling and rehabilitation.  In his case, there was no pattern of misconduct and therefore his discharge is incorrect. 

	c.  A UOTHC discharge is normally appropriate under chapter 14-3 of AR 635-200; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall service.  His case has merit to correct his discharge.

	d.  In accordance with chapter 14 of AR 635-200, the separation authority must direct that the case be processed through medical channels, if appropriate. Such disposition is required if the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct and action under the Uniform Code of Military Justice (UCMJ) is not initiated.  

	e.  In accordance with AR 40-501, when a Soldier cannot perform with a permanent physical profile, the commander will make appropriate comments.  In his case, he had in fact started physical disability processing.  He was relieved from active duty and was attached to a medical facility for 90 days. 

	f.  In summary, he was incapacitated for the performance of normal military duties for over 6 months and at the time he was charged with being absent without leave (AWOL).  As an injured member, he should have been allowed to recover or be separated for disability.  Additionally, there was no investigation of the reason he went AWOL.  The UOTHC discharge was given to him without knowing the impact and despite the fact that he had started disability processing before going AWOL.  

3.  The applicant provides a copy of Order 44-1, issued by Headquarters, U.S. Army Medical Department Activity (MEDDAC), Fort Knox, KY, on 1 April 1980; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 August 1980; a copy of his DA Form 2-1 (Personnel Qualification Record), copies of several medical documents, treatment records, and a copy of his separation packet, in support of his request.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of his UOTHC discharge to a general or an honorable discharge with a medical narrative reason for separation.  

2.  Counsel states that after a careful review of the evidentiary record and statements submitted by the applicant, the issues raised by the applicant amply advance his contention and substantially reflect the probative facts needed for a careful review.  

3.  Counsel provides copies of two letters, dated 15 September and 16 October 2009, authored by the applicant; a copy of the applicant's DD Form 214; a copy of the applicant's separation packet; and copies of the applicant's medical documents, treatment records, and a copy of his separation packet, in support of the applicant's request.

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 AR20070006579, on 14 November 2007, and AR20080015938, on 27 January 2009.

2.  The applicant and his counsel did not submit any new evidence which was not previously reviewed by the ABCMR; however, the applicant submitted new arguments which were not previously considered; therefore, it is considered new evidence and as such, as an exception to policy, warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 21 June 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  The highest rank/grade the applicant attained during his military service was private/E-2.

4.  The applicant's records further show he was initially assigned to the 1st Battalion, 2nd Field Artillery, Germany, on or about 10 October 1979.

5.  On 16 January 1980, the applicant was referred to the General Surgical Clinic, 2nd General Hospital, Germany, for an inguinal hernia (groin hernia).  His name was put on a waiting list for surgery.  He was subsequently issued a temporary physical profile on 23 January 1980, valid for 30 days.  The physical profile indicated that the applicant was medically qualified for duty with limitations as evidenced by a medical reexamination and a review of his health records.

6.  On 26 March 1980, the U.S. Air Force Medical Center, Wright-Patterson Air Force Base, OH, published Orders A-107, directing the applicant to proceed to Ireland Army Hospital, Fort Knox, KY, effective 26 March 1980, for administrative and/or medical processing/treatment.

7.  On 1 April 1980, Headquarters, MEDDAC, Fort Knox, KY, published Orders 44-1 ordering the applicant's attachment to the Medical Holding Company, Fort Knox, KY, from 23 March 1980 to 20 June 1980, for the purpose of hospitalization and medical treatment.  

8.  On 5 April 1980, the applicant departed his unit of attachment in an AWOL status and was subsequently dropped from the Army rolls on 6 May 1980.  He ultimately surrendered to military authorities at Fort Knox, KY, on 11 May 1980.  He was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY. 

9.  On 14 May 1980, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 5 April 1980 through on or about 11 May 1980.  

10.  On 16 May 1980, the applicant underwent a mental status evaluation where he was determined to have had no significant mental illness.  He was mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in board proceedings.

11.  On 16 May 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of AR 635-200.

12.  In his request for discharge the applicant indicated that he was making this request of his own free will and that he had not been subjected to any coercion whatsoever by any person and that he had been advised of the implications that are attached to it.  He also indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also submitted a statement on his own behalf and stated that he had given considerable thought to his decision and believed that approval would be in the best of interest of the Army and his own.  

13.  On 22 July 1980, the applicant's immediate commander recommended approval of the applicant’s discharge with a UOTHC and remarked that the applicant's conduct had rendered him triable by court-martial under circumstances which could have lead to a bad conduct or dishonorable discharge and that based on his previous record, punishment was expected to have had minimal rehabilitative effect.  He added that he believed a discharge was in the best interests of all concerned and that there did not appear to be any reasonable ground to believe the applicant was at the time of his misconduct mentally defective, deranged, or abnormal.   They both recommended a UOTHC discharge.

14.  On 22 July 1980, the applicant's intermediate commander also recommended approval of the applicant's discharge for the same reasons stated by his immediate commander.  He further recommended a UOTHC discharge.

15.  On 28 Ju1y 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive a UOTHC discharge and be reduced to the lowest enlisted grade.  On 13 August 1980, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year and 17 days of creditable active military service and had 36 days of lost time and 90 days of excess leave.

16.  There is no indication in the applicant's records that he was issued a permanent physical profile that warranted an MOS Medical Retention Board or that his medical condition warranted his entry into the Physical Disability Evaluation System (PDES).  Additionally, there is no indication in his records that he underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB)

17.  On 13 November 1986, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board determined that he was properly discharged and denied his petition for an upgrade.

18.  On 14 November 2007, the ABCMR denied the applicant's request for an upgrade of his discharge to an under honorable conditions (general) discharge.
19.  On 27 January 2009, the ABCMR denied the applicant's request for an upgrade of his discharge to an honorable or a medical discharge.

20.  AR 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.

21.  AR 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

22.  AR 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.

23.  AR 635-40 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 chapter 3 of AR 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

24.  Paragraph 3-1 of AR 635-40 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

25.  AR 40-501, governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention, and separation including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities.  Chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be corrected to a general, honorable, or a medical discharge.

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of 

acceptable personal conduct and performance of duty by military personnel.  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 sufficient evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.

4.  With respect to the applicant's medical discharge, the evidence of record shows that the applicant was awaiting surgery for a hernia.  Referral to the PDES is done through an established process.  He was never determined to be disqualified for retention and contrary to his contention he was neither issued a permanent physical profile nor started disability processing.  Notwithstanding the applicant's temporary physical profile, there is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that would have warranted his referral to the PDES.  Therefore, he was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated for physical disability.

5.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his/her rank, grade or specialty and assign an appropriate disability rating before he/she can be medically separated.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

6.  With respect to the applicant's arguments regarding the various paragraphs of chapter 14 (misconduct) of AR 635-200, his argument is not valid as he was not discharged under the provisions of chapter 14.  He went AWOL.  His actions brought court-martial charges.  He elected not to undergo the court-martial and volunteered to be discharged in lieu of the court-martial.  Again, contrary to his contention, he was counseled by a military attorney and was advised of the implications of his actions.  He chose to request a discharge. 


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 AR20070006579, dated 14 November 2007, and Docket Number AR20080015938, dared 27 January 2009.



      _______ _   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)                                         AR20090012429



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ABCMR Record of Proceedings (cont)                                         AR20090012429



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