BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021380 


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 her under other than honorable conditions discharge be changed to a medical discharge.

2.  The applicant states she would like her discharge changed to a medical discharge since there were medical reasons for being absent without leave (AWOL).

3.  The applicant provides no additional documentary evidence in support of this 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 U.S. Army Reserve and entered initial active duty for training (IADT) on 24 November 1980.

3.  On 20 April 1981, while in IADT, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for 13 specifications of failing to go at the time prescribed to her appointed place of duty.

4.  A DA Form 4187 (Personnel Action), dated 1 June 1981, shows the applicant departed AWOL on 30 May 1981.  A second DA Form 4187, dated 31 August 1981, shows she was apprehended by military authorities and returned to military control on 25 August 1981.

5.  On 31 August 1981, charges were preferred against the applicant for violation of Article 86 (AWOL) for the period 30 May 1981 to 25 August 1981.

6.  The applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  She indicated in her request that she understood she might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, that she might be ineligible for many or all benefits administered by the Veterans Administration, that she would be deprived of many or all Army benefits, and that she might be ineligible for many or all benefits as a veteran under both Federal and State laws.  She also acknowledged that she might expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

7.  The applicant further acknowledged that she was counseled on the requirements for completion of a medical examination prior to her separation.  She elected not to undergo a medical examination prior to her separation.

8.  On 25 September 1981, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an under other than honorable conditions discharge and that she be reduced to the lowest enlisted grade.  Accordingly, on 16 October 1981, the applicant was discharged with a characterization of service of under other than honorable conditions.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.

10.  The applicant's service medical records are not available for review.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be changed to a medical discharge based on a medical reason.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural error which would tend to jeopardize her rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  There is no available medical evidence showing the applicant had any medical condition prior to her discharge on 16 October 1981.  There is also no evidence of record to show she was ever found to be medically unfit to perform her duties.

4.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to her was in error or unjust. 
Therefore, there is no basis for changing her under other than honorable conditions discharge to a medical discharge.

5.  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 the aforementioned 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)                                         AR20090021380



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ABCMR Record of Proceedings (cont)                                         AR20090021380



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