IN THE CASE OF:	 

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090019363 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  The applicant states the following:

* he was having medical problems in the army with memory loss, headaches, and loss of hearing
* he was hit in the head with a steel field helmet three times by the platoon sergeant
* he suffered a brain injury and ear damage
* he had a blood clot in his brain
* the report of injury is in his service medical records
* he was absent without leave (AWOL) after an incident due to reduced brain function

3.  The applicant provides a self-authored statement, a Standard Form 600 (Chronological Record of Medical Care), and a Virginia Department of Corrections Medical Discharge Summary 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 on 29 November 1976.  

3.  The applicant’s Chronological Record of Medical Care shows he was treated in August 1977 for being struck in the left ear.  This medical document shows he suffered trauma to his left ear.  

4.  Between June 1977 and January 1978, the applicant accepted three nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice for being AWOL during the following periods:

* 2 May 1977 to 28 May 1977
* 7 September 1977 to 20 September 1977
* 8 January 1978 to 12 January 1978

5.  Charges were preferred against the applicant for being AWOL from 1 April 1978 to 27 June 1978.

6.  The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if a UOTHC discharge was issued.  He did not submit statements in his own behalf.

7.  In the company commander’s recommendation, he stated the following:

* the applicant had no motivation for continued service
* the applicant would not respond to either counseling or rehabilitation
* the applicant had been medically examined and was qualified for separation
* the applicant was not mentally defective, deranged, or abnormal at the time of his misconduct 
8.  The separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with the issuance of a UOTHC Discharge Certificate.

9.  Prior to his discharge, the applicant underwent a medical examination.  The examining physician determined the applicant was qualified for separation with a physical profile of 111111.

10.  The applicant was discharged from active duty on 2 August 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 1 year, 3 months and 24 days of active military service with 130 days of lost time.  

11.  The applicant provided a self-authored statement in support of his claim and stated the following:

* he was struck in the head twice and once in his left hear by the platoon sergeant
* he was bleeding from his ear and woke up hours later in the infirmary 
* he was told he has suffered severe trauma to the left ear and he had a big knot on his head 
* he started having hearing loss in his left ear and severe headaches
* he lost focus on military exercises
* he tried to get help from the military but was refused
* his administrative discharge was approved

12.  There is no evidence which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  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 UOTHC is normally considered appropriate.

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.  The applicant's contentions regarding his medical problems with memory loss, headaches, and loss of hearing are noted.  His medical service record confirms he was treated in August 1977 for being struck in his left ear.  However, he has provided no evidence other than his self-authored statement that the extenuating circumstances regarding his medical problems were the reason he committed the offense (AWOL) which led to his discharge.

2.  The evidence of record shows that prior to the applicant's separation in August 1978, competent medical authority determined that he was then medically qualified for separation with a physical profile of 111111.  

3.  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.  

4.  The applicant was advised of the effects of a UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

5.  The applicant's record of service shows he was AWOL for 130 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a general under honorable conditions or fully honorable discharge.

6.  The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20090019363





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ABCMR Record of Proceedings (cont)                                         AR20090019363



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