IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019861 


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, in effect, a medical retirement or discharge upgrade from general to honorable.

2.  The applicant states that he injured his leg while performing his military duties guarding Cuban refugees at Fort McCoy, WI.  He spent nearly a year in the hospital receiving medical treatment.  When he returned to his unit with his leg in a cast, his commander had him perform manual duties that were difficult to do with a leg in a cast.  The applicant, in effect, states the company commander asked him if he wanted out of the Army.  He signed papers and started out-processing.  He continues saying it wasn't until he got home and his dad read his discharge papers that he understood his type of discharge characterization.  The applicant states he is now embarrassed and does not want his children to know his type of discharge.  Therefore, he is requesting an upgrade. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 28 November 1979 for a period of 3 years.  He completed basic combat and advanced individual training  meeting the qualifications standards for military occupational specialty 11B (Infantryman).  

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 13 February 1981.  His offenses included failure to go at the time prescribed to his appointed place of duty and being absent without leave from on or about 1 April 1981 until on or about 8 April 1981.

4.  On 7 May 1981, the applicant's commander notified him that he was initiating action to discharge him from the Army under the provisions of the Expeditious Discharge Program and that he recommended the applicant receive a general discharge.

5.  The applicant's commander stated the applicant could not accomplish the most meager of jobs without direct supervision, he failed to report for duty at the prescribed times, and when he reported he failed to perform his assigned tasks.  The commander stated the applicant had failed to respond to constructive counseling, and that his conduct was detrimental to the order and discipline of his platoon and company.  Additionally, the commander stated the applicant failed to demonstrate promotion potential.  The applicant had been personally counseled on three occasions for failure to go to his appointed place of duty and he had received NJP on one occasion.

6.  The commander advised the applicant he had the right to decline this discharge.  However, if he declined and his subsequent conduct indicated such action was warranted, he might be subject to disciplinary or administrative separation procedures under other provisions of law or regulations.  The applicant had a right to submit a statement in his own behalf.

7.  On 12 May 1981, the applicant acknowledged notification of his proposed discharge, voluntarily consented to be discharged, and waived his right to submit a statement.  He acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps and that he did obtain legal counsel.
8.  On 12 May 1981, the applicant's commander recommended the applicant be discharged under the Expeditious Discharge Program and that he be given a General Discharge Certificate.

9.  On 18 May 1981, the appropriate authority approved the applicant's expeditious discharge and directed that he be furnished a General Discharge Certificate.

10.  On 22 May 1981, the applicant was discharged under the provisions of paragraph 5-31h(2) of Army Regulation 635-200 (Personnel Separations).  He had completed 1 year, 5 months and 24 days of active service that was characterized as under honorable conditions.

11.  There is no evidence in the applicant's military personnel records of the applicant having been diagnosed with any mental or physical condition which was determined to be medically disqualifying to perform duty or for retention.

12.  The applicant's service medical records were not available for review. 

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

14.  Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel.  Chapter 5 provides that members who had completed at least 6 months but less than 36 months of continuous active service during their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel due to poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge

15.  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.

16.  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 he should have received a medical discharge because of his broken leg that occurred in line of duty or that his discharge should be upgraded because his company commander treated him unfairly. 

2.  There is no evidence the applicant was not medically qualified to perform his duties or that he failed to meet medical retention criteria.  There is no evidence the applicant was referred to an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

3.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The applicant’s commander notified him of the reasons and the type of discharge the commander was recommending.  The applicant voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  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.

5.  The ABMCR does not upgrade properly issued discharges solely based on the passage of time. 



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)                                         AR20090019861





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ABCMR Record of Proceedings (cont)                                         AR20090019861



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