IN THE CASE OF:	

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018858 


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 undesirable discharge be changed to a medical discharge.

2.  The applicant states that he still has medical aliments from his hospitalization at Fort Gordon, GA.  He contends he was hospitalized for a period of time during basic training with an acute illness in which one of the illnesses required an operation which was never performed.  He states he was rushed to finish basic training and went on to advanced individual training with no follow-up on his condition.  He also states that he was on active duty for five months without taking any leave.  He points out that he sent for his medical records on several occasions since his discharge but received records he did not ask for.  He finally received the requested records in August of 2009.

3.  The applicant provides copies of his clinical records and medical examinations.

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 28 August 1969, the applicant enlisted in the Regular Army for two years. He completed his training and he was awarded military occupational specialty (MOS) 94A (Food Service Helper).

3.  Records show the applicant received a special court-martial for being absent without leave from 17 December 1969 to 2 March 1970.  He was sentenced to hard labor without confinement for 60 days and a forfeiture of $50.00 per month for three months.

4.  On 16 December 1970, his commander preferred court-martial charges against him for being AWOL from 26 March 1970 to 7 December 1970.

5.  On the same day, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged that he was submitting his request of his own free will with no coercion whatsoever by any person.  He acknowledged that he understood the effects of receiving an under other than honorable conditions characterization.  He also acknowledged that he understood that he may be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law.

6.  There are no additional facts and circumstances concerning the applicant’s discharge proceedings in the available records.

7.  On 11 January 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 4 months, and 14 days of total active service with 338 days of time lost.

8.  His record contains a copy of a Standard Form (SF) SF 93 (Report of Medical History) and a copy of an SF 88 (Report of Medical Examination) that were completed at the time of his separation processing.  On the SF 93 that the applicant completed at the time of his separation examination he stated "I'm in good health."  In all categories he checked the block "no," indicating he did not have any medical problems.  The examining medical official did not note any comments in the "physician's summary" section.  This document was authenticated by the applicant and the examining medical official.   The SF 88 also does not note any comments by the examining medical official.  He was determined to be qualified for duty/separation by the examining official.  This form also shows his physical profile indicated he possessed a high level of medical fitness.  There is no evidence to show he was recommended for a medical evaluation board (MEB) or a physical evaluation board (PEB).

9.  On 17 September 2004, the applicant applied to the ABCMR for an upgrade of his undesirable discharge.  His request was denied by the Board on 7 July 2005.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  An MEB is convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines that the Soldier does not meet retention standards the board will recommend referral of the Soldier to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been carefully considered.

2.  His SF 88 showed he was fully qualified for both duty and separation.  His physical profile indicator also showed no evidence of any physical limitations; therefore, there is no evidence which shows he was found unfit for duty at the time of his separation.

3.  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 that requirement.

4.  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)                                         AR20090018858



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ABCMR Record of Proceedings (cont)                                         AR20090018858



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