IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090013454 


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, in effect, upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that his discharge is unjust because he was out of his mind with fever and infection when he took off from the Army Hospital at Fort Campbell, KY in 1977 (sic).  He contends the record is in error because he was told he would be released with a general, under honorable conditions discharge or a medical discharge under honorable conditions.  He points out that since his discharge he has changed, that he obtained his GED [General Equivalency Diploma], and that he is attending college.  He also wants to join his local VFW [Veterans of Foreign Wars] and the American Legion.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a GED Test Result sheet; a Ball State University academic transcript; a Department of Corrections Certificate of Participation for completing a 6-hour stress management group on 31 December 2008; and an undated [Indiana] State Form 3380R (Offender Evaluation and Performance Report) 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 enlisted in the Regular Army (RA) on 25 September 1973 for a period of 3 years.  He successfully completed basic combat training.

3.  On 20 December 1973, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 29 November 1973 to
17 December 1973.  His punishment consisted of a forfeiture of pay and extra duty.

4.  On 7 January 1974, the applicant went AWOL.

5.  Service medical records show that on 9 September 1975, while in an AWOL status, the applicant was admitted to a civilian hospital in Evansville, IN under an assumed name and it was not known that he was an active member of the U.S. Army until December 1975, at which time he was transferred to the Army Hospital at Fort Campbell.  The service medical record states, in pertinent part, "Therefore, it should be noted that his entire medical course developed from a complicated case of appendicitis which occurred while he was AWOL from his unit for approximately 2 1/2 years."  Service medical records show that the applicant was hospitalized on 9 September 1975 with acute appendicitis, that he underwent an appendectomy, and that postoperatively his course was complicated by a high spiking fever and he became severely and critically ill within the next few days.  He underwent four additional surgeries at the civilian hospital.  He was transferred to the Army Hospital at Fort Campbell on
31 December 1975.

6.  On 23 February 1976, while in the hospital at Fort Campbell, and while on a two-day pass, the applicant again went AWOL and he returned to military control on 3 March 1976.  On 6 May 1976, while in the hospital at Fort Campbell and pending a Medical Evaluation Board (MEB), he again went AWOL when he did not return from attending a movie on post for which he was given a pass.  He returned to military control on 16 July 1976.

7.  On 27 July 1976, the applicant underwent a separation physical examination and he was found to be qualified for separation.  He reported that his health was good.

8.  On 30 August 1976, charges were preferred against the applicant for his AWOL offenses.

9.  On 5 August 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated in his voluntary request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that when he enlisted in 1973 it was wrong because he had family problems, that he was pressured by his family and girlfriend, and that he joined the Army to get away but it just made things worse.  He contended that he was too young to take responsibility, that he did not like the Army, and that he just wanted to start a new life.

10.  On 9 August 1976, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

11.  Accordingly, the applicant was discharged with an undesirable discharge on 
13 August 1976 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served 11 months and 10 days of creditable active service with 707 days of lost time due to being AWOL.

12.  On 26 June 1992, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a 
request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

14.  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.  Although the applicant contends that his discharge is unjust because he was out of his mind with fever and infection when he took off from the Army Hospital at Fort Campbell in 1977 (sic), evidence of record shows he was on a two-day pass when he went AWOL the first time from the Army Hospital at Fort Campbell (23 February 1976 to 2 March 1976) and he went AWOL the second time from the hospital when he did not return from attending a movie on post for which he was given a pass (6 May 1976 to 15 July 1976).

2.  The applicant's contention that the record is in error because he was told he would be released with a general under honorable conditions discharge or a medical discharge under honorable conditions was noted.  However, evidence of record shows that on 5 August 1976 he consulted with counsel and he indicated in his request for discharge that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  In addition, although it appears he was pending an MEB in May 1976 prior to going AWOL, medical evidence of record shows that on 27 July 1976 the applicant underwent a separation physical examination and he was found to be qualified for separation and he reported that his health was good.

3.  The applicant's contentions that since his discharge he has changed, that he obtained his GED, and that he is attending college were noted.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
5.  The applicant’s brief record of service included one judicial punishment and 707 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general.

6.  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.  

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

8.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090013454



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ABCMR Record of Proceedings (cont)                                         AR20090013454



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