BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010919 


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 undesirable discharge to honorable.

2.  The applicant states he believes his characterization of service is incorrect.  He states he was not discharged from service because of any problems; rather, he thought he would receive a medical discharge.

3.  The applicant provides the following documentary evidence:

	a.  DA Form 3947 (Medical Board Proceedings) with an attached narrative summary, dated 25 November 1975;

	b.  DD Form 214 (Report of Separation from Active Duty) with a separation date of 26 April 1976; 

	c.  letter from the National Personnel Records Center, dated 14 December 2009; and 

   d.  a letter from the County of Summit, OH, transmitting the applicant's application to the Army Review Boards Agency, dated 26 February 2010.

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 was inducted into the Army of the United States on 6 March 1968.  He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman), served in the Republic of Vietnam from 12 August 1968 to 7 October 1969, and was advanced to pay grade E-4.  On 8 October 1969, he was honorably released from active duty by reason of overseas returnee and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  The applicant enlisted in the Regular Army on 25 March 1975 for a period of
3 years.  He completed training and he was awarded MOS 94B (Cook).

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 22 September 1975 for being absent without leave (AWOL) from on or about 1 August to on or about 4 September 1975.

5.  After review by a medical evaluation board (MEB), on 23 September 1975, the applicant received a DD Form 3349 (Medical condition - Physical Profile Record) and a permanent profile for lumbar scoliosis (deformity of the spine).  He received a permanent level 3 (P-3) profile for his lower extremities.  The DA Form 3349 further shows the applicant was returned to duty with permanent assignment limitations.  These limitations included no crawling, stooping, running, jumping, prolonged standing or marching.  Additionally, his limitations included no push-ups or pull-ups, no overhead work or prolonged handling of heavy materials.  Additionally, an MOS change was recommended.

6.  The applicant was medically evaluated a second time on 24 November 1975 and was recommended for a second MEB for his thoracic lumbar scoliosis.  
Additionally, records show he was evaluated at the mental hygiene clinic on four separate occasions and he was receiving treatment for situational adjustment reaction.  There was no noted evidence of psychosis and the examining physician stated the applicant was psychiatrically cleared for any administrative action deemed necessary.  However, the physician also recommended the applicant be considered by a second MEB because he could not find an MOS that was compatible with his physical profile.  The physician concluded his report by stating the applicant was qualified for a medical discharge under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 34e.

7.  On 25 November 1975, a second MEB found the applicant medically unfit for duty and recommended his referral to a physical evaluation board (PEB).  However, on 9 December 1975, the convening authority returned the MEB proceedings to its board members for reconsideration.  During the MEB reconsideration process, the applicant was found medically fit for duty with the aforementioned physical limitations noted on his DA Form 3947.

8.  On or about 10 March 1976, the applicant was informed of the MEB's decision that found him medically fit for duty.  He indicated he did not agree with its findings and recommendation and he would appeal.  

9.  On 7 April 1976, the special court-martial convening authority dismissed the following charges and specifications against the applicant by publication of Special Court-Martial Order Number 7, issued by Headquarters, 24th Infantry Division Support Command:

* for being AWOL from 25 November to on or about 5 December 1975
* for being AWOL from 7 December 1975 to 6 January 1976

10.  The applicant's separation packet and the complete facts and circumstances pertaining to his discharge are not available for the Board's review.  However, his DD Form 214 issued on 26 April 1976 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of court-martial.  He had completed 10 months and 18 days of creditable active service with 74 days of time lost under the provisions of Title 10, U.S. Code, Section 972 for the periods from 1 August to 3 September 1975, 25 November to 4 December 1975, and from 7 December 1975 to 5 January 1976.

11.  There is no evidence in the applicant's service record to show that he 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,.  In that request the Soldier must admit guilt to the charge(s) against him/her, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  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 (VA) 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-3a, 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 under other than honorable conditions.

14.  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.

15.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to an honorable discharge.

2.  While the applicant provided evidence to show he was processed by two MEBs, the final MEB found the applicant fit for duty with limitations.  There is evidence to show the applicant had intended to appeal this MEB decision; however, no documentary evidence supporting a successful appeal was found in the applicant's service record.

3.  Regardless, since court-martial charges were preferred against the applicant which authorized a characterization of service of under other than honorable conditions, any action being contemplated under the physical disability evaluation system would have been terminated.

4.  While the applicant's discharge packet is not contained in his records, it would appear that the applicant requested discharge in lieu of court-martial when he was charged with two specifications of AWOL.

5.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

6.  In view of the foregoing, 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)                                         AR20100010919



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ABCMR Record of Proceedings (cont)                                         AR20100010919



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