IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090016799 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he would like to receive a Department of Veterans Affairs (VA) card only.  He adds that during a training exercise at Fort Polk, LA, he was impaled with a device to his left foot.  He requested permission to return from the field to base so he could seek treatment but was denied by the officer in charge.  His foot became worse the following day and he again requested permission to return to base but was denied a second time.  He ultimately returned on his own on the rations truck and went to the clinic to seek treatment for his deformed foot.  While caring for his foot, his commanding officer came in and placed him on a disciplinary restriction for 2 weeks and he followed that with court-martial charges.  He concludes that he did not deserve this type of treatment considering that he was planning on becoming an operator within the Special Forces. 

3.  The applicant provides a copy of a VA Form 10-10EZ (Application for Health Benefits), dated 26 February 2009, in support of his request.

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 record shows he enlisted in the Regular Army for a period of 3 years on 22 June 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty 05E (Voice Radio Operator).  The highest rank/grade he attained during his military service was private/E-2.  

3.  The applicant's records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 2 November 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from training on or about 1 November 1976.  His punishment consisted of a forfeiture of $50.00 per month for 1 month and 10 days of extra duty.

5.  On 29 July 1977, court-martial charges were preferred against the applicant for one specification of willfully disobeying a lawful order from his superior commissioned officer to remain in the field on or about 20 July 1977; two specifications of altering a DD Form 689 (Individual Sick Slip) by feigning illness for the purpose of avoiding field duty on or about 18 and 19 July 1977; and one specification of breaking restriction on or about 5 August 1977.

6.  On 5 August 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

7.  In his request for discharge, the applicant indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person and that although he was provided with legal advice, the decision for the request for discharge was his.  He also indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense.  He further acknowledged he understood that if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

8.  On 15 August 1977, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an Under Other Than Honorable Discharge Certificate and be reduced the lowest enlisted grade.  On 18 August 1977, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time of his discharge shows he was discharged for conduct triable by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 1 month, and 27 days of creditable active military service.

9.  On 18 September 1980, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  The applicant's available medical records do not show he suffered an injury and/or an infection to his foot or sought treatment for such injury.

11.  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 under other than honorable conditions is normally considered appropriate.  

12.  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.

13.  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 his discharge should be upgraded.

2.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he had a foot injury, suffered from an infection, or that he addressed such issues with the chain of command and/or medical channels. 

3.  The applicant's records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Subsequent to consulting legal counsel, the applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He also indicated that although he was provided with legal advice, the decision to request discharge was his.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.






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)                                         AR20090016799



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ABCMR Record of Proceedings (cont)                                         AR20090016799



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