BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090021404 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states that at the time of his separation he was experiencing medical problems due to injuries he sustained in a vehicle accident and he did not understand all the implications from his actions as he does now.  He does not remember specific details about the accident, but he was treated for problems with his left leg, left shoulder, eyes, headaches, and memory.  He was still experiencing problems with those injuries when he went on leave for Christmas.  He contacted his supervisor and he was granted a leave extension, so he did not report back to duty until July 1979 because he thought it was alright to report later since he had an open date of return.  He concludes he wanted to make the Army a career until the accident occurred.

3.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Letter of Commendation
* two Standard Forms (SF) 600 (Chronological Record of Medical Care)

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's record shows he enlisted in the Regular Army on 6 March 1978.  He completed initial entry training and he was awarded military occupational specialty (MOS) 63H (Automotive Repairman).  He was subsequently reassigned to the Federal Republic of Germany.

3.  The applicant provides a letter he received from the commander of Special Training Company, Basic Combat Training Committee Group, Fort Dix, NJ, dated 14 June 1978.  In this letter, the commander commended him for his superior performance which culminated in his selection as the outstanding Soldier of his class by his drill sergeants.

4.  The applicant provides two SF's 600 extracted from his military medical record. These forms show he sought medical treatment on three occasions following a bus accident that occurred on 2 November 1978.

	a.  On 2 November 1978, X-rays were taken and it was noted he had fair range of motion, no deformities, a tender spot on his right shin, no edema, and he was able to walk.  The injury was diagnosed as a contusion.  He was prescribed an Ace wrap, ice, and aspirin, and instructed to return the following morning if the problems persisted.

	b.  On 3 November 1978, he was seen regarding pain to his left shoulder and left leg resulting from the accident the day prior.  It was noted his left leg had no swelling, no discoloration, and no deformities, but his range of motion was limited by pain.  It was also noted that his left shoulder had no swelling, no discoloration, and no deformities, his range of motion was good, but he had some tenderness.  The X-rays were negative.  The injury was diagnosed as a contusion.  He was prescribed a pain medication, Robaxin, and an Ace wrap.

	c.  On 7 November 1978, he informed the person examining him that he had been involved in an automobile accident 5 days prior, but he did not recall how the 
injury occurred.  It was noted his left leg had a small abrasion, with no swelling, no 

discoloration, no deformities, and his range of motion was good.  The injury was diagnosed as a mild contusion.  He was issued a temporary profile limiting him to running no greater than one-quarter mile for one week.

5.  The applicant's record contains four DA Forms 4187 (Personnel Action) showing:

* 6 December 1978, he departed his unit on ordinary leave
* 26 December 1978, his unit reported him absent without leave (AWOL)
* 24 January 1979, he was dropped from the rolls (DFR) of the Army for desertion
* 5 July 1979, he surrendered to military authorities and returned to military control

6.  A DD Form 458 (Charge Sheet), dated 9 July 1979, shows the applicant was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL for the period 26 December 1978 to 5 July 1979.  His chain of command recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.

7.  On 18 July 1979, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of an under other than honorable conditions discharge and acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 19 July 1979, the commander of the U.S. Army Personnel Control Facility, Headquarters Command, XVIII Airborne Corps, Fort Bragg, NC, noted the applicant had been personally interviewed and stated his AWOL was caused by family problems due to illness.  He further stated he could not cope with his family problems and the Army too.  Therefore, he desired to get out of the Army with a less than honorable discharge.  The appropriate commanders recommended approval of his request and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 1 October 1979, the separation authority approved the applicant's request and directed that he be reduced to the lowest grade, discharged, and furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  Headquarters, XVIII Airborne Corps, Fort Bragg, Orders 194-20, dated 4 October 1979, reduced the applicant to the rank/grade of private (PV1)/E-1 and assigned him to U.S. Army Transfer Point, Fort Bragg, for separation processing.

11.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10 on 11 October 1979, with an under other than honorable conditions discharge.  He had completed 1 year and 27 days of creditable active service with 192 days of AWOL and 84 days of excess leave.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge 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 under other than honorable conditions 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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record is void of any evidence and he did not provide any evidence showing the injuries he sustained in the bus accident contributed to his misconduct.  In fact, evidence shows he cited family problems as the catalyst for his period of AWOL and his desire to be separated from the Army.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to a general discharge.

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)                                         AR20090021404



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ABCMR Record of Proceedings (cont)                                         AR20090021404



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