IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021606 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states:

* He was inducted into the Army of the United States (AUS) with back problems and received a profile approximately 3 weeks into basic training
* During basic training there were specific maneuvers he was physically incapable of doing
* He was sent to the infirmary and then to the hospital and given injections in his lumbar spine
* He was given a medical profile (no standing over 5 minutes, no running, no jumping, etc.)
* He pulled guard duty and office work at night
* It seemed wrong for him to even be in the Army as he was in pain and could not perform any military duties other than office work
* He could never get through basic training and attempted it twice
* It was impossible for him to finish due to his physical limitations
* He went absent without leave (AWOL) because he could not understand why he was inducted in the first place
* He has been on "SSDI" since 2008 and diagnosed with degenerative disc disease
* He has had 4 back surgeries since 1978
* He is in need of health care  

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) 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.  On 17 September 1970, the applicant underwent an induction physical examination and was found qualified for induction with a physical profile of 111211.  Item 38 (Spine, Other Musculoskeletal) on his Standard Form 88 (Report of Medical Examination) shows he was rated normal.  A USAREC [U.S. Army Recruiting Command] Form 178 (Report of Special Diseases), dated 
17 September 1970, shows the applicant was diagnosed with sprain of left sacroiliac joint.  X-ray results indicated no fracture and showed some scoliosis.  He received injections of decadron and xylocaine in two areas of his sacroiliac.     

3.  The applicant was inducted into the AUS on 18 March 1971.  

4.  A DA Form 3349 (Medical Condition - Physical Profile Record), dated 
31 March 1971, shows the applicant was issued a temporary profile "3" for lower extremities.  His defects were scoliosis L-S spine and possible sciatica.  This form shows he was found medically qualified for duty with temporary limitations.  The limitations included:

* No crawling, stooping, running, jumping or squatting
* No standing or marching over 20 minutes
* No lifting over 15 pounds
* Recommendation was a military occupational specialty that conformed to the above limitations
* Qualified for Vietnam duty



5.  The applicant was issued a temporary profile "3" for lower extremities on 
30 April 1971.

6.  While in basic training the applicant went AWOL on 4 May 1971 and returned to military control on 2 June 1971.  He went AWOL on 27 July 1971 and returned to military control on 18 August 1971.  He went AWOL again on 20 August 1971 and returned to military control on 31 August 1971.  On 23 November 1971, charges were preferred against the applicant for the AWOL periods.  Trial by special court-martial was recommended.

7.  The applicant was issued a temporary profile "3" for lower extremities on 
24 November 1971.  

8.  On 22 December 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf; however, his statement is not available.         

9.  On 13 January 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 
25 January 1972 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 5 months and 8 days of creditable active service with 150 days of lost time.        

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  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.

13.  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.

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.

15.  Paragraph 5-24 (Joints, Spine, Scapulae, Ribs, and Sacroiliac) of Army Regulation 40-501 (Standards of Medical Fitness) in effect at the time states the causes of medical unfitness are defects and diseases of the spine, scapulae, ribs, or sacroiliac joints which interfere with the daily participation in a rigorous physical training or athletic program, with the wearing of military equipment, or which detract from a smart military bearing or appearance. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he was inducted into the AUS with back problems and the USAREC Form 178 were noted.  However, there is no evidence he did not meet induction standards under the provisions of paragraph 5-24 of Army Regulation 40-501.  Medical evidence of record shows on 17 September 1970 he underwent an induction physical examination and was found qualified for induction.  In addition, item 38 (Spine, Other Musculoskeletal) on his Standard Form 88, dated 17 September 1970, shows he was rated normal.  

2.  A discharge is not upgraded for the purpose of obtaining healthcare benefits.

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 type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's brief record of service included 150 days of lost time.  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.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgraded 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)                                         AR20090021606



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ABCMR Record of Proceedings (cont)                                         AR20090021606



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