BOARD DATE:	 20 October 2010 

		DOCKET NUMBER:  AR20100009550 


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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable or changed to a medical discharge.  

2.  The applicant states the following:

* He had flat feet and calluses when he was inducted into the military which is documented in his pre-induction physical 
* He was issued medical code C profiles for his foot at various times in his military career
* He had a condition called intractable plantar keretosis (IPK) [a discrete, focused callus, usually about 1 centimeter, on the plantar aspect of the forefoot] which was discovered after extensive training and then it came to bear
* The physical condition led to administrative reprimand when he was unable to complete a lawful order such as, running, marching, jumping etc.
* He was found guilty of disobeying a lawful order

3.  The applicant provides the following documents in support of his application:

* Information on metatarsal problems, calluses, and IPK
* Certificate for 50 Mile Club
* Record of Formal Counseling
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 July 1980
* DD Form 215 (Correction to DD Form 214), dated 12 November 1982
* Standard Form 88 (Report of Medical Examination)
* Standard Form 513 (Clinical Record – Consultation Sheet)
* DA Form 3349 (Physical Profile)

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 Army National Guard on 18 June 1976 and was discharged on 13 April 1979 and was involuntarily ordered to active duty on      14 April 1979.  

3.  The applicant underwent a physical examination on 19 April 1979.  His Report of Medical Examination indicated he had a callus over the 5th metatarsal [the long bone on the outside of the foot that connects to the little toe] on his right foot; flat feet.  The examining physician indicated the applicant was qualified for military service with a physical profile of 111111.  

4.  On 28 August 1979, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for two specifications of failing to go to his appointed place of duty.  

5.  Item 21 (Time Lost) on the applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) from 14 April 1979 to 17 April 1979.  

6.  The applicant’s service record shows he was given four temporary physical profiles between May 1979 and July 1979 for pain to his feet, IPK and calluses.  His DA Forms 3349 listed his assignment restrictions as “Code C”; not to exceed 10 minutes per hour.  

7.  His service record contains two DA Forms 4187 (Personnel Action), dated 26 November 1979 and 22 December 1979, which indicate he was in military confinement from 24 November 1979 through 17 December 1979.  This period of lost time is not recorded on his DA Form 2-1 or DD Form 214.  

8.  On 17 March 1980, he was convicted by a summary court-martial of failing to go to his appointed place of duty; willfully disobeying a lawful order from a noncommissioned officer (NCO); and wrongfully securing an M-16 in his wall locker.  He was sentenced to a reduction to E-1, extra duty for 30 days, restriction for 30 days, and a forfeiture of $200.00 for 1 month.  

9.  Charges were preferred against the applicant on 17 April 1980 for the following offenses:

* Failing to go to his appointed place of duty (2 specifications)
* Absent from duty
* Leaving from place of duty
* Absent from unit
* Disrespectful in language and demeanor
* Disobeying a lawful order from staff sergeant
* Breaking restriction (3 specifications)

10.  On 28 May 1980, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He elected to submit statements in his own behalf; however, his statements are not available.

11.  On 30 May 1980, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with the issuance of a UOTHC Discharge Certificate.  

12.  The applicant underwent a physical examination on 13 June 1980.  His Report of Medical Examination indicates his feet were abnormal with the note “Pes Planus” [flat foot].  The examining physician entered the applicant’s diagnosis as chronic pes planus.  The applicant was qualified for separation with a physical profile of 111111.  

13.  The applicant was discharged on 10 July 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  His DD Form 214 shows he completed 1 year, 2 months, and 23 days of active military service.  
14.  On 13 October 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his case.  

15.  The applicant was issued a DD Form 215 (Correction to DD Form 214), dated 12 November 1982, which amended the following items on his DD Form 214 to show:

* Item 12c (Net Active Service This Period) – “01 01 29” 
* Item 29 (Dates of Time Lost During This Period) – 28 DAYS LOST UNDER TITLE 10 USC 972:  “14 APR 79-17 APR 79; 24 NOV 79-17 DEC 79”

16.  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 UOTHC is normally considered appropriate.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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.  

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

20.  Army Regulation 635-40, paragraph 4-3 states that an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  No evidence of record indicates the request was made under coercion or duress.

2.  The applicant’s record of service shows he received one Article 15 and was convicted by a summary court-martial.  Although he may now feel that his UOTHC discharge should be upgraded to honorable, his service does not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge.  His service record is void of evidence which shows his medical condition contributed to his misconduct.  

3.  The evidence of record shows that prior to the applicant's separation in July 1980 competent medical authority determined he was medically qualified for separation with a physical profile of 111111.  The applicant did not have any medically unfitting disability which required physical disability processing.  

4.  Based on the governing regulation, an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.  At the time in question, the type of discharge (UOTHC) the applicant was subject to rendered him ineligible for referral to the Physical Disability Evaluation System.

5.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20100009550





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (con