IN THE CASE OF:	

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008950 


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 correction of his under other than honorable conditions discharge to a medical discharge.

2.  The applicant states his discharge should be changed due to medical and psychological reasons.  He elaborates as follows:

	a.  His parents separated when he was a little child and he was cared for by his brother.  However, his brother was killed in a car accident.  He decided to enter the Massachusetts Army National Guard (ARNG), but he could not attend training assemblies with his unit because he did not have a driver's license and could not periodically report to his unit which was located at a distance.

	b.  He enlisted in the Regular Army, but he could not get the military occupational specialty (MOS) that he wanted because of his low scores.  Nevertheless, when he reported to Fort Ord, CA, he enjoyed the Army but hung out with the wrong people.  He experimented with alcohol and/or drugs until one day his girlfriend told him she had an abortion of a child that was not his.  He felt his life went from bad to worse and decided to go absent without leave (AWOL).  He returned 18 months later because he wanted to finish; no one came looking for him.

	c.  If he had known that his discharge would bar him from any future benefits, he would have stayed.  He was young with little education at the time.  He asked his psychiatrist about his condition and he was told he was ready for a nervous breakdown.  There has not been a day that he does not think about what he did.  That is why he wants a medical discharge. 

3.  The applicant provides a medical document, dated 26 July 1979.

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 records show he enlisted in the Massachusetts ARNG on 7 February 1976.  He entered active duty for training on 16 May 1976, completed basic combat and advanced individual training, and he was awarded MOS 76Y (Unit Supply Specialist).  He was honorably released from active duty for training on 14 September 1976 to the control of his ARNG unit.

3.  However, after a series of unexcused absences from unit training, he was discharged from the ARNG on 2 December 1978 with an uncharacterized discharge and he was transferred to the U.S. Army Reserve Control Group.

4.  His records also show he was ordered to active duty on 3 December 1978 and he was assigned to the 707th Maintenance Battalion, Fort Ord, CA.

5.  On 1 October 1979, he departed his unit in an AWOL status and he was subsequently dropped from the Army rolls on 30 October 1979.  He ultimately surrendered to military authorities on 2 June 1981 at Fort Ord, CA.

6.  The facts and circumstances of his discharge are not available for review with this case.  However, his records contain the following documents:

	a.  A DD Form 458 (Charge Sheet), dated 31 October 1979, shows court-martial charges were preferred against him for one specification of being AWOL from on or about 1 October 1979 through an undetermined date.
	b. Orders 190-456, Headquarters, 7th Infantry Division, Fort Ord, CA, reassigned him to the U.S. Army Separation Transfer Point effective 30 September 1981.

	c.  A properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 30 September 1981 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial with a character of service as under other than honorable conditions.  He completed 1 year, 1 month, and 23 days of creditable active service during this period and he had 610 days of lost time.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

8.  His medical records do not indicate he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES).  However, he submitted a medical document, dated 26 July 1979, that shows he sustained some pain to his upper back due to lifting an engine.  He was prescribed medications and ordered to return to duty.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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, an under other than honorable conditions discharge is normally considered appropriate.

10.  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.

11.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEB's), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  

13.  Army Regulation 635-40 provides guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

14.  Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

15.  Army Regulation 40-501 does not list alcoholism or drug abuse as a condition that requires referral to the PDES.  Additionally, there is no provision to refer a person who is "ready for a nervous breakdown" to the PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be changed to a medical discharge.

2.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 30 September 1981 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his last enlistment.  There is no reason to upgrade his discharge.

4.  With respect to a medical discharge, there is no evidence in the available records and he failed to submit any evidence that shows he suffered from a medical condition that limited his ability to perform in his grade and MOS or that would have warranted entry into the PDES.

5.  Alcoholism, drug abuse, and/or nervous breakdown are not conditions that required referral to the PDES.  Additionally, the medical document he submitted that shows he sustained some pain to his upper back due to lifting an engine does not prove he was determined to be medically unqualified/unfit for duty.  Thus, he was not considered by an MEB.  Without an MEB, 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 for physical disability.  

6.  In view of the foregoing evidence, there is insufficient evidence to grant him a medical 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)                                         AR20100008950



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)