IN THE CASE OF:	  

		BOARD DATE:	  29 October 2010

		DOCKET NUMBER:  AR20100013033 


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 discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states he sustained a head injury while he was serving in Korea due to a vehicle accident.  He experienced blackouts and loss of balance and he needs his discharge upgraded so that he may be eligible for medical care from the Department of Veterans Affairs (VA).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2nd Infantry Division Driver Training Cards
* Army medical records

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.  On 21 August 1986, the applicant enlisted in the Regular Army for 3 years.  He completed the training requirements and he was awarded military occupational specialty 13B (Cannon Crewman).  

3.  On 21 October 1987, nonjudicial punishment (NJP) was imposed against the applicant for two specifications of failure to go to his appointed place of duty and for willfully disobeying a lawful order.

4.  He arrived in Korea on 14 March 1988 and he returned to the U.S. on 
4 January 1989.

5.  On 28 August 1989, charges were referred against the applicant for being absent without leave (AWOL) from 3 April to 7 May 1989; and from 28 July until he was apprehended on 22 August 1989 and returned to military control.

6.  On 28 August 1989, the applicant was notified that charges were pending against him for the above AWOL offenses.  He acknowledged receipt of the notification and after consulting with counsel, he submitted a request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood the following:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

7.  The appropriate authority approved the applicant's request for discharge on 7 September 1989 and directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 14 September 1989 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years, 10 months, and 24 days of net active service with approximately 2 months of lost time due to being AWOL.

8.  On 24 March 1992, the Army Discharge Review Board denied the applicant's appeal for an upgrade of his discharge.

9.  There is no evidence in the applicant's official military records that indicate he sustained an injury to his head after he was in a vehicle accident while he was in Korea.  However, the applicant submits copies of his Army medical records showing he was admitted to the hospital on 14 June 1989 after experiencing nausea, vertigo, and loss of balance.  He was diagnosed with labyrinthitis.

10.  The applicant's medical records show that while he was hospitalized he reported occasional black-out spells one or two per month since he had a motor vehicle accident in April 1989, while he was in Korea.  He reported he had the accident during one of his black-out spells.  He stated that the black-outs lasted a few seconds only and involved staring into space without falling.  He stated that the spells resolved after being shaken by his friends.  Clinical Records Progress Notes show that all of his symptoms were resolved without treatment.  He was discharged to duty on 16 June 1989.

11.  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, a discharge under other than honorable conditions is normally considered appropriate.

12.  Paragraph 3-7a of Army Regulation 635-200 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.






13.  Paragraph 3-7b of Army Regulation 635-200 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 was discharged in accordance with applicable laws and regulations in effect at that time.

2.  The type of discharge directed was appropriate considering all the facts of his case.

3.  The applicant's contentions were considered; however, they are not sufficiently mitigating to warrant the relief requested.  There is no evidence in the available record, nor has the applicant submitted any evidence, sufficient to show that black-out spells contributed to his acts of indiscipline.  He went AWOL for
2 months.  NJP had been imposed against him for failure to go to his appointed place of duty and for willfully disobeying a lawful order before he ever arrived in Korea.  

4.  The applicant acknowledged that he understood the effects of a less than fully honorable discharge at the time he submitted his voluntary request for discharge for the good of the service in lieu of trial by court-martial.  The type of discharge he was issued appropriately reflects his overall record of service.

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)                                         AR20100013033



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ABCMR Record of Proceedings (cont)                                         AR20100013033



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