BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012949 


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 (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he enlisted in the Regular Army in a small, rural town in Kansas on 30 May 1975.  He alleges that he was exposed to and contracted viral hepatitis B and chronic hepatitis C at the induction center by a contaminated inoculation gun.  The fact that he had chronic hepatitis C was not identified as an isolated virus until the 1990s after he donated blood at the Red Cross.  He continues by stating that both hepatitis B and C were contracted by countless military personnel who served in Southeast Asia, personnel who reenlisted in the mid 1970’s and passed through induction centers undiagnosed.  The applicant claims that this negligent viral contamination and the onset of incurable liver disease has directly resulted in a life of physical, mental, and emotional decline into complex debilitation.  He listed several conditions he has suffered to include continual skin ailments, hypothyroid disease, swollen and painful joints, anxiety and depression, mood swings, headaches, sleep loss, and hearing loss.  The applicant states that an immediate upgrade of his discharge to “Honorable” is just and reasonable given the facts in relation to this duty-related incurable disease.  He further states that multiple absent without leave (AWOL) instances arose in his effort to seek alternative treatment and bring attention to the situation.  After two continued years of active service without remedy or relief and indifference by the chain-of-command, he accepted an administrative UOTHC discharge.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and supplemental statements 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.  On 23 August 1974, the applicant underwent a physical examination at the Kansas City, MO Armed Forces Examining and Entrance Station (AFEES).  His Standard Form 88 (Report of Medical Examination) shows he was qualified for enlistment into the Army.  The examining physician indicated that no disqualifying defects or communicable diseases were noted as of 14 September 1974.  

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 21 September 1974 under the delayed entry program.  He enlisted in the Regular Army on 30 May 1975.  He completed infantry training and was assigned to Fort Carson, CO as a team leader.  His highest grade attained was specialist four, E-4.  

4.  The applicant’s service personnel records contain medical documents which indicate he was seen at the Medical Clinic at Fort Carson, CO for Hepatitis B.  During his medical evaluations, the applicant complained of headaches, backaches, and mild fatigue.  

5.  On 13 April 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being AWOL from 5 April to 8 April 1976.  

6.  The applicant’s service personnel records contain a document entitled “Hepatitis Interview” which shows he was referred from the Blood Bank on 19 October 1976.  He identified his symptoms as vomiting, aches in joints, and fatigue and he indicated the date of onset as “since end of Sept 76.”  Under Item 6 (History) of this document he indicated he was exposed (May 1976); used pot/injections (5 months); drank from streams; tooth extraction (May 1976); and donated blood (April 1976).

7.  The applicant’s medical records show he was placed on convalescent leave on 2 December 1976 for serum Hepatitis.  

8.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was placed on assignment to Germany in February 1978.

9.  On 11 May 1978, the applicant accepted NJP for being AWOL from 26 March to 2 May 1978.  

10.  On 4 December 1978, charges were preferred against the applicant for two specifications of being AWOL from 17 July to 19 July 1978 and from 21 July to 27 November 1978.

11.  On 8 December 1978, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He submitted statements in his own behalf.  Overall, the applicant alleged that he went AWOL to make payments on his farm and to pay his wife’s nursing school tuition.  

12.  On 22 December 1978, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with the issuance of a UOTHC Discharge Certificate.

13.  Accordingly, the applicant was discharged from active duty on 19 January 1979 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 3 years and 2 months of creditable active service.  He had 173 days of lost time due to being AWOL.

14.  The applicant provided supplemental statements in which he outlined the facts pertaining to his disease.  He gave a brief history of his induction into the Army.  In his statement, he reiterated his allegations that he was exposed to and contracted two separate and distinct blood-born diseases, viral hepatitis B and chronic hepatitis C as outlined on his application.  The hepatitis viruses were detected when he donated blood at the Red Cross.  He expounded the physical and emotional effects of the infectious disease.  The applicant admitted that he was guilty of loss of trust and respect for his command, but he alleged that not one single day was his service conduct less than “Honorable” throughout the period in which he served his nation.  

15.  There is no evidence which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 UOTHC 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 he was exposed to and contracted viral hepatitis B and chronic hepatitis C at the induction center by being exposed to a contaminated inoculation gun.  Although there are medical documents which confirm the applicant was diagnosed with hepatitis early during his tenure on active duty, there is no evidence which confirm his allegations that he contracted this disease from a contaminated inoculation gun at the induction center.  



2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's record of service shows he received two NJP's for being AWOL, one AWOL period was extensive.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general discharge.

4.  There is no evidence of record which indicates the actions taken in the applicant's case were in error or unjust, therefore, 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)                                         AR20090012949



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ABCMR Record of Proceedings (cont)                                         AR20090012949



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