IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014023 


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 the reason for his discharge under other than honorable conditions be changed to physical disability.

2.  The applicant states that he was injured in the motor pool on 29 September 1976 by a piece of shrapnel that entered his body, passed through his heart, and lodged in his right lung.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty); extracts of his service medical records; a Wellstar Douglas Hospital report of medical examination, dated 5 May 2009; and a Tanner Medical Center report of medical examination, dated 2 May 2007, 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 6 March 1975, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).  He was subsequently assigned for duty at Fort Benning, Georgia.

3.  On 26 November 1975, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for violation of a lawful general regulation by being in a fatigue uniform at an off-post restaurant.  The punishment included 7 days of extra duty.

4.  On 11 August 1976, the applicant was promoted to specialist four, pay grade E-4.

5.  On 14 October 1976, the applicant departed Fort Benning for duty in the Republic of Korea.

6.  The applicant was absent without leave (AWOL) from 30 November 1976 to 6 January 1977.

7.  The discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 22 February 1977 under the provisions of Army Regulation 600-200 (Personnel Separations), chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions.  He had completed 1 year, 10 months, and 10 days of creditable active duty service during this period and had 37 days of lost time due to AWOL.

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

9.  The extracts of the applicant's service medical records, as provided by the applicant, state that in September 1976, he was hitting metal with a hammer and a piece of metal flew up and cut his left arm.  The laceration was treated.

10.  The applicant provided a copy of a medical examination report from the Wellstar Douglas Hospital indicating that he had suffered chest pain and shortness of breath.  The examination found what appeared to be a piece of shrapnel in his right chest.

11.  The applicant also provided a copy of a medical examination report from the Tanner Medical Center indicating that the applicant suffered from abdominal pain.  The examination found an approximately 7-millimeter nodule in his right lung.

12.  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, 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 is normally considered appropriate.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason for his discharge should be changed to physical disability.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record of service.

3.  There is no available evidence showing that the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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)                                         AR20090014023



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ABCMR Record of Proceedings (cont)                                         AR20090014023



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