IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100013942 


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 discharge be corrected to show he received a medical discharge. 

2.  The applicant states, in effect, he wants a medical discharge due to physical disability.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and multiple documents extracted from his military 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.  The applicant enlisted in Regular Army on 24 August 1970 for a 3-year period.  He completed his initial entry training and was awarded military occupational specialty 76P (Special Purpose Equipment Repair Parts Specialist). 

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions as follows: 

	a.  on 11 January 1971, for failure to report at the appointed time and prescribed place of duty on 7 January and on 8 January 1971;

	b.  on 15 March 1971, for failure to go to his prescribed place of duty on        10 March and on 12 March 1971;

	c.  on 8 May 1972, for drunk and disorderly conduct, failure to report for duty on 3 May, 4 May and 5 May 1972; and

	d.  on 26 May 1972, for failure to go to his prescribed place of duty on 24 May and 25 May 1972.

4.  During a special court-martial on 10 November 1971 at Long Binh Post in the Republic of Vietnam, he was convicted of larceny, disrespect towards a superior noncommissioned officer, and failure to obey a lawful order of a superior noncommissioned officer.  

5.  On 10 October 1972, court-martial charges were preferred against the applicant for wrongful possession of marijuana and being absent without leave (AWOL) from 7 October 1972 to 10 October 1972.

6.  On 10 November 1972, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel, chapter 10, for the good of the service in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.


7.  The applicant underwent a medical examination on 4 December 1972 and was found to be medically qualified for separation consideration under the provisions of Army Regulation 635-200.  He was found to be mentally stable and he met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  Additionally, in his own handwriting, he stated TO THE BEST OF MY KNOWLEDGE, I AM IN GOOD HEALTH. 

8.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial on 14 December 1972 and directed issuance of an undesirable discharge.

9.  The applicant was discharged accordingly on 22 December 1972.  The DD Form 214 issued at the time confirms he completed 1 year, 6 months, and 27 days of net active service and that his service was characterized as under other than honorable conditions.  This form shows he had 272 days of lost time under the provisions of Title 10, U.S. Code, section 972.

10.  The Army Discharge Review Board denied the applicant's request to upgrade his discharge on 25 June 1974.  That board determined the applicant's discharge was proper and was accurately reflected by characterizing his service as under other than honorable conditions.

11.  In support of his application, the applicant provided copies of his military medical service records which contained a copy of his separation physical conducted on 4 December 1972.  During this medical examination, he was found fit for duty and eligible for retention under the provisions of Army Regulation 
40-501.

12.  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 is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be changed to a medical discharge. 

2.  The medical evidence of record indicates the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.  Therefore, there is no basis for physical disability retirement or separation.

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)                                         AR20100013942





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ABCMR Record of Proceedings (cont)                                         AR20100013942



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