IN THE CASE OF:	

		BOARD DATE:	2 February 2010  

		DOCKET NUMBER:  AR20090014755 


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 general, under honorable conditions discharge be changed to a medical discharge.

2.  The applicant states that he was awarded 100 percent service-connected disability and he feels that his discharge should be a medical discharge under honorable conditions.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He also indicated he had provided a copy of a Department of Veterans Affairs (VA) award letter; however, this letter is not included with 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 29 October 1970 (his DD Form 214 erroneously reflects 20 October 1970).  He served in Vietnam from
30 April 1971 through 1 March 1972.  His highest rank/grade attained during his tenure of service was specialist four (SP4)/E-4.

3.  The applicant’s discharge packet is not available for review.  However, his initial DD Form 214 shows he was discharged on 26 December 1972 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial with the issuance of an Undesirable Discharge Certificate.  He completed 1 year, 5 months, and 28 days of creditable active service with 248 days of lost time.

4.  On 8 June 1975, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

5.  On 14 April 1980, the ADRB upgraded the applicant’s discharge from undesirable to general, under honorable conditions as a result of a personal appearance hearing.  In Section C of the ADRB’s decisional document it stated there was a valid separation physical in the applicant’s file which indicated normal in block 42 relative to psychological problems as well as certification for discharge in block 77 of the Standard Form 88 (Report of Medical Examination).

6.  There are no medical documents available in the applicant’s service personnel records.

7.  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 Veterans Administration 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.  

8.  Army Regulation 635-200 required that the General Court-Martial Convening Authority (GCMA) direct that a Soldier be processed through medical channels if the disability was the cause or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

9.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was awarded 100 percent service-connected disability and he feels that his discharge should be a medical discharge under honorable conditions.

2.  The applicant’s contention that the VA granted him 100 percent service-connected disability is acknowledged.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

3.  The ADRB decisional document shows that prior to the applicant's separation in December 1972, competent medical authority determined that he was medically qualified for separation.  There is no evidence which indicates his military career was ended due to medical unfitness.

4.  In the absence of the applicant's chapter 10 discharge proceedings, 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, is presumed to have been administratively correct and in conformance with applicable regulations. 

5.  The applicant has not presented sufficient evidence and there is no evidence of record to show that the discharge he was initially issued or the discharge he presently holds warrants a change to a medical discharge.  Therefore, 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)                                         AR20090014755



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ABCMR Record of Proceedings (cont)                                         AR20090014755



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