IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100012208 


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 undesirable discharge (UD) be changed to a medical discharge.

2.  The applicant states he was diagnosed with epilepsy while serving in Germany.

3.  The applicant provides no additional evidence.

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 military record shows he initially enlisted in the Regular Army (RA) on 31 March 1972 and continuously served until he was honorably discharged for the purpose of immediate reenlistment on 13 May 1974.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 1 month, and 13 days of creditable active military service.

3.  On 14 May 1974, the applicant reenlisted in the RA and he served in military occupational specialty 12B (Combat Engineer).

4.  The applicant’s military record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions:

* On 22 October 1974, for failing to go at the time prescribed to his appointed place of duty on 8 October 1974
* On 4 February 1975, for failing to go at the time prescribed to his appointed place of duty on 24 January 1974
* On 4 November 1975, for missing movement on 11 October 1975
* On 8 March 1976, for failing to go at the time prescribed to his appointed place of duty on 24 February 1976

5.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost Under Section 972, Title 10, U.S. Code) that he was reported absent without leave (AWOL) from 3 to 22 May 1976, dropped from the rolls from 7 June to 23 August 1976, and he was confined by military authorities on 
26 August 1976.  On the same date a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for these AWOL offenses.

6.  On 9 September 1976, the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, that he was fully alert and oriented, that his mood was level, that his thinking process was clear, and that his memory was good.  The examiner also determined the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.


7.  On 26 August 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

8.  In his request for discharge, the applicant acknowledged he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life if he were issued a UD.

9.  The applicant’s military record includes a Standard Form 93 (Report of Medical History) that shows he was diagnosed with a seizure disorder in 1973, for which he took 300 milligrams of Dilantin per day.  It also shows his seizure disorder condition was very well controlled.  A Standard Form 88 (Report of Medical Examination), dated 9 September 1976, also shows the applicant was qualified for separation.

10.  On 30 September 1976, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation
635-200, and directed he be issued a UD.  On 12 October 1976, the applicant was discharged accordingly. 

11.  The DD Form 214 (Report of Separation from Active Duty) the applicant was issued shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of Conduct Triable by Court-Martial.  It also shows he completed 4 years, 3 months, and 4 days of creditable active military service and he had 98 days of lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 HD or a general discharge (GD) is authorized, at the time of the applicant's separation, the regulation provided for the issuance of a UD.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be changed to a medical discharge because he had a seizure disorder.

2.  The available evidence confirms the applicant had a seizure disorder.  However, it also shows he received the appropriate medical treatment for this condition and it was well controlled.

3.  The available evidence is void of any medical records or any other documents that indicate he suffered from a mental or physically disqualifying condition at the time of his discharge processing that would have warranted separation through medical channels.

4.  The available evidence further shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL on two separate occasions and he accrued 98 days of lost time. After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  In view of the foregoing, the applicant’s request should be denied.


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)                                         AR20100012208



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ABCMR Record of Proceedings (cont)                                         AR20100012208



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