BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100008376 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states through his father, because he can no longer write, that there is nothing he would like better than to have an honorable discharge and medical benefits before he leaves this world.  

3.  The applicant provides the following:

* a letter from his father, dated 11 December 2009
* a copy of a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 18 January 2010
* a document from the Cameron County Veterans Service Office
* a copy of a Cameron County request for military discharge form
* a copy of two photographs depicting his accident damage
* a copy of an Operation Desert Storm certificate
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 16 December 1989, for a period of 8 years.  On 16 July 1990, he was discharged from the USAR DEP and on 17 July 1990 he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12C (Bridge Crewmember).

3.  The applicant's record is void of a complete separation packet containing all the facts and circumstances surrounding his discharge processing after his return from an absent without leave (AWOL) status.  However, the applicant's record does contain a properly-constituted DD Form 214 which shows he was discharged on 28 May 1993 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, with an under other than honorable conditions characterization of service.  He had completed 1 year, 9 months, and 25 days of total active service with 383 days of lost time due to three separate periods of AWOL.  The periods of AWOL as listed on his DD Form 214 are as follows:

* 10 July 1991 through 11 July 1991
* 13 January 1992 through 11 February 1992
* 21 April 1992 through 6 April 1993

4.  The applicant provided a letter from his father who states that while the applicant was stationed at Fort Riley, KS, he had a near fatal accident during field maneuvers on 9 October 1991 and was in serious condition for several months.  He claims he was the first family member to arrive at the hospital and to speak to the attending physicians at the time.  He goes on to say he personally observed the severity of the injuries that his son sustained and he took photographs of his son shortly after the accident.

5.  The applicant's father also states his son sustained several internal injuries and trauma to his head which included a skull fracture, broken jaw, eye socket injury, broken ribs, and other injuries which he does not recall.  As a result of these injuries, his son underwent facial reconstructive surgery and was fitted with a metal plate to support the broken bones in and around his face.  The applicant endured months of intense pain as a result of his injuries.
6.  He contends that the accident was a significant life-changing event for his son, who has since suffered from painful headaches, blurred vision, and dizziness.  Aside from the physical symptoms, he has suffered permanent psychological trauma as well.  He has nightmares, lack of concentration, uncontrollable anger, depression, withdrawal from family and friends, sudden changes in emotion, and numerous other symptoms.  The applicant is continually reminded of the accident by the scars left as a result of the surgeries.

7.  His father contends that subsequent to the accident, he requested a complete copy of the accident report from the applicant's chain of command to no avail.  His son is in desperate need of medical attention and reexamination of the injuries which occurred while on active duty.  He requests review of his son's accident, authorized medical support, and the possibility of disability compensation.

8.  The applicant also provided a copy of a VA Form 21-4138 in which the injuries incurred as a result of the field training exercise are described.  His father describes that the applicant was run over by a 5-ton truck which caused severe trauma to his face and chest area.  He also describes the intense pain his son suffers due to the metal plates in his face and explains the mood swings, nightmares, and fits of rage he currently has.

9.  There is no indication in the applicant's record to show that he applied to the Army Discharge Review Board for consideration of his case within that board's 15-year statute of limitations.

10.  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, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the Service.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to honorable was carefully considered and found not to be supported by the evidence provided.

2.  A copy of the applicant's DD Form 214 shows he was placed in an AWOL status on two separate occasions subsequent to the accident.  It is presumed that the last period of AWOL and his return to military control is what prompted the separation under chapter 10 of Army Regulation 635-200.

3.  The specific facts and circumstances surrounding his discharge processing are not on file.  As such, the Board must presume administrative regularity and that the applicant was discharged properly.  Based on the applicant's prolonged period of AWOL, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his 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)                                         AR20100008376



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)