IN THE CASE OF:	  

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090012509 


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 his undesirable discharge be changed to a medical discharge.

2.  The applicant states that his undesirable discharge should be changed to a medical discharge because a recent medical finding may change things that happened while he was in the Army.  The applicant states he began to have a skin condition when he arrived at his advanced individual training.  He states he couldn't shave and he became depressed.  He states he hurt his neck and now he's having pain in his back and neck area.  He states he has been diagnosed with sarcoidosis and his health is getting bad from this condition.  He states his eyes are going bad and his bones are going bad because of the medicine that he is using.  He states he did not sell drugs.  He states his wife used drugs but he didn't.  He states the drugs he had turned out to be something that is put in or on food and he was never charged with anything.

3.  The applicant provides copies of three pages from his service medical records; a treatment record, dated 27 April 2005; and a Department of Veterans Affairs (VA) rating decision in support of his 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 personnel records show he enlisted in the Regular Army on 10 January 1973 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Basic).

3.  On 7 March 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent from his appointed place of duty.

4.  On 15 February 1974, court-martial charges were preferred against the applicant for being absent without leave (AWOL) during the period from on or about 2 October 1973 to on or about 30 January 1974.

5.  The applicant signed a request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

6.  The applicant submitted a statement in his own behalf wherein he stated he wanted to get out of the Army because he could not get along with some of the people and he felt he would go AWOL again and again.

7.  On 19 February 1974, the applicant's commander recommended approval of his request for discharge and that he receive an undesirable discharge.

8.  On 4 March 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be furnished an Undesirable Discharge Certificate.

9.  On 6 March 1974, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service.  He had completed 8 months and 23 days of active service that was characterized as under other than honorable conditions.  He had 155 days of time lost.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 2 July 1974, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  Copies of pages from his service medical records submitted by the applicant show he received treatment for pseudofolliculitis barbae in February and May of 1973.  He was reevaluated for this condition in February 1974.  He was also treated for low back pain on 12 June 1973 as a result of an injury suffered while riding in the back of a truck.

12.  A treatment record, origin unknown, submitted by the applicant shows he received treatment for a skin condition on 27 April 2005.

13.  The applicant's VA Rating Decision, dated 6 May 2009, indicates that he was granted service connection for treatment purposes only by the VA for a skin condition.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provided that the medical treatment facility commander with the primary care responsibility would evaluate those referred to him and would, if it appeared as though the member was not medically qualified to perform duty or failed to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who did not meet medical retention standards would be referred to a physical evaluation board (PEB) for a determination of whether they were able to perform the duties of their grade and military specialty with the medically disqualifying condition.

15.  Army Regulation 635-40 provided that no enlisted member may be referred for physical disability processing when action had been or would be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determined that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing was to be included with the records.
16.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

17.  Code of Federal Regulations, Title 38, section 3.12(a), provides for an administrative determination by the VA that an "other than honorable discharge was issued under conditions other than dishonorable" to establish basic eligibility for VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be changed to a medical discharge because he had a skin condition in advanced individual training and he became depressed.  He further contends he hurt his neck and now he's having pain in his neck and back.  He contends his health is getting worse.  He also contends he did not sell drugs and he has never used them.

2.  The court-martial charges preferred against the applicant were for being AWOL.  He was not charged with nor was he discharged based on the sale or use of drugs.

3.  The applicant's service medical records show he was treated for a skin condition while on active duty.  However, there is no evidence that this condition would have warranted him being 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 retired for physical unfitness.

4.  There is no evidence the officer exercising general court-martial jurisdiction had determined that the applicant's skin condition was the cause or substantial contributing cause of the applicant's misconduct.  Therefore, the applicant would not have been referred for disability processing based on action being taken for his discharge under other than honorable conditions.

5.  The applicant’s voluntary 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 administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  The VA, in accordance with its own policies and regulations, may make an administrative decision as to whether an individual's period of service is considered as under conditions other than dishonorable for the purpose of VA benefits.  This administrative decision does not establish error or injustice in the Army's characterization of the applicant's service.

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)                                         AR20090012509



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ABCMR Record of Proceedings (cont)                                         AR20090012509



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