IN THE CASE OF:	

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090019797 


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 upgrade of his undesirable discharge to an honorable or a medical discharge.

2.  The applicant states he was “drafted” in 1968 and while undergoing training at Fort Polk, LA, he was subjected to a form of gas which caused his lungs to feel like they were going to explode.  He notes that when he told his drill sergeant he was told to “suck it up” and continue his training.  He states he graduated from training the following week, went on 30 days of leave, and then reported to Fort Hood, TX.

3.  While at Fort Hood, the applicant states he went on sick call several times but received no help to treat his condition.  He states that when he couldn’t take it any longer he went home on a weekend pass and his wife told him if he left her again he would never see his daughter.  As such, the applicant went absent without leave (AWOL).  The applicant states he has regretted his decision to this day.

4.  The applicant states he was ultimately returned to Fort Hood and placed in the stockade where his left lung collapsed while he was exercising.  He states he was rushed to Brooke Army Hospital [Fort Sam Houston, TX], where his lung was inflated and a week later it collapsed again.  He states he was subsequently sent to Fort Sam Houston for surgery.  After recovering from surgery and while being discharged from the hospital, the applicant states he was confronted by a captain from the Provost Marshal’s Office who told him he was to go home and his discharge would be sent to him.
5.  The applicant states he moved around a lot after that and he never did receive his discharge, so he was really surprised when he was arrested for desertion in 1976.  He states that when he was told he “was to get a general discharge instead of a medical” he no longer cared and just wanted to get back to his family.

6.  He states he feels his discharge was not warranted and his discharge should be upgraded so he can get the medical help he needs.  He states he has raised seven children who are living happy and productive lives and he contributed to his community as much as he was able.

7.  The applicant provides two letters from friends who support his request to upgrade the characterization of his discharge and argues he should probably have received a medical discharge.

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.  Records indicate the applicant previously requested correction of his records in June 1976 to show he was discharged by reason of a physical disability.  This Board denied that request on 9 November 1977.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  In view of the foregoing, the applicant is not eligible to have his request for a medical discharge reconsidered and as such, that issue will not be discussed further in these Proceedings.  The Board will, however, consider that portion of his request pertaining to an upgrade of the characterization of his discharge to honorable.


3.  The applicant was inducted into the Army of the United States and entered active duty on 14 February 1968 in Houston, TX.  At the time of his induction, his records indicated he was married but had no children.  He underwent basic combat training at Ft. Polk where on 19 April 1968 he received a Letter of Commendation commending him for consistently obtaining high scores on his physical fitness tests and obtaining a score of 450 out of a possible 500 on his final record physical fitness test.

4.  On 19 April 1968, the same day he received his Letter of Commendation, the applicant departed Fort Polk en route to Fort Hood.  The applicant arrived at Fort Hood on 14 May 1968 and on 22 May 1968 he was reported as AWOL.  The applicant returned to military control on 13 September 1968 and on 7 October 1968 he was convicted by a special court-martial for that AWOL.  His sentence was a forfeiture of $41.00 pay per month for 6 months.

5.  On 14 October 1968, the applicant again departed AWOL and he was subsequently dropped from the rolls (DFR) of the Army.  The applicant was apprehended by civilian authorities in Houston, TX and he was returned to military control on or about 6 August 1969 at Fort Hood.  He was placed in military confinement pending a general court-martial.

6.  While in confinement, the applicant suffered sharp chest pains on
2 September 1969 and he was transported to Darnall Army Hospital at Fort Hood where he underwent treatment for a collapsed lung (pneumothorax, spontaneous, left lung, 50%).  He was discharged to light duty on 8 September 1969 and he was returned to confinement.

7.  On 10 September 1969, the applicant was convicted by a general court-martial for being AWOL between 14 October 1968 and 6 August 1969.  His punishment included confinement at hard labor for 9 months, forfeiture of $40.00 pay per month for 9 months, and a bad conduct discharge.  His confinement was to be served at Fort Leavenworth, KS.

8.  On 19 September 1969, while still in confinement at Fort Hood, the applicant suffered another left spontaneous pneumothorax.  He was transported from Darnall Army Hospital to Brooke General Hospital where he underwent an operation for his lung condition on 15 October 1969.  His medical treatment records note his “postoperative course was uneventful and he was ready to return to Ft Hood, Texas when he went AWOL.”  The medical treatment record indicates he was reported AWOL on 2 November 1969.


9.  On 1 April 1970, while the applicant was still in an AWOL status, General Court-Martial Order Number 58 was published by Headquarters, III Corps, Fort Hood, affirming the applicant’s 10 September 1969 court-martial and directing the sentence “be duly executed.”  The order also noted the applicant “escaped from confinement on 3 November 1969, and has been in an AWOL status since that date.”

10.  On 14 January 1976, the applicant was again apprehended by civilian authorities in Houston, TX.  When asked for his reason for going AWOL he reported he couldn’t get along with the Army and his wife was going to divorce him.  Following his apprehension, the applicant was returned to Fort Hood.  He was subsequently placed in an excess leave status on 18 February 1976.

11.  Documents associated with the applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, were not available to the Board nor was there any indication as to the reason the applicant’s prior bad conduct discharge was not executed.  However, the applicant’s DD Form 214 (Report of Separation from Active Duty) indicates that on 6 April 1976 he was discharged under the provisions of Army Regulation 635-200, chapter 10, characterized as under other than honorable conditions, and issued an Undesirable Discharge Certificate.

12.  The statements submitted on behalf of the applicant indicate both authors have known the applicant for numerous years.  One author indicated he had known the applicant for about 30 years while the other noted she had known the applicant for 35 years.  Both supporters recounted the medical struggle the applicant has had over the years which they contend resulted from his military service.  Both indicated the applicant needed help, particularly with his medical issues, and asked the Board grant his request to have his discharge upgraded.

13.  His records do not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  References:

   a.  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.

   b.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

   c.  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.  It is unclear from available records why the applicant’s approved punitive discharge was never executed and he was allowed to be administratively discharged under the provisions of Army Regulation 635-200, chapter 10.  It is likely because of the passage of time the applicant’s original court-martial action from 1970 was not available to officials at Fort Hood in 1976 when the applicant was being processed for his administrative discharge.

2.  Notwithstanding the fact the applicant should have received a bad conduct discharge, his DD Form 214 showed he was administratively discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.  
Although it appears that an administrative error was made in the issuance of his discharge and his DD Form 214, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to affect the administrative change to correct the characterization of his discharge.  However, the applicant should be aware that the documents directing the type of discharge he was to receive are properly filed in his OMPF.

3.   In the absence of the documents associated with his administrative separation, regularity is presumed.

4.  The applicant argues he was told by a captain from the Provost Marshal’s Office to go home and wait for his discharge following his medical treatment at Brooke General Hospital and that he was surprised when he was apprehended by authorities for desertion.  However, it is noted that when the applicant was apprehended he reported the reason for his AWOL was his inability to get along with the Army and threats of divorce by his wife.

5.  The applicant's records indicate he had three periods of AWOL and his last period encompassed more than 6 years.  The applicant has not provided a compelling argument which would justify upgrading the characterization of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

6.  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 this requirement.

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)                                         AR20090019797



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019797



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1