IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014580 


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 an upgrade of the character of service of his discharge under other than honorable conditions to honorable and to change the reason to medical disability.

2.  The applicant states he served in the U.S. Army from May 1976 to December 1978 and completed his initial enlistment with high merit and honorable service despite medical problems.

	a.  He states that while stationed in Germany in January 1978 he was admitted to an Army hospital and treated for pneumonia, pneumothorax, and a collapsed lung.  He also states that he continued to have significant medical problems, but he was allowed to reenlist.

	b.  He states he was reassigned to Fort Hood, Texas, in 1979.  His chain of command developed negative feelings toward him and gave him a hard time because of his health problems and ongoing medical treatment.

	c.  He states he received treatment in 1979/1980 from a civilian hospital and learned that his condition was more severe than that indicated by Army medical officials.  He was released from the hospital and returned to his unit.  He continued to go to sick call, but was provided minimal care.  He states he reported his problem to his chain of command and the Inspector General; however, there was no care or concern expressed for his situation.

	d.  He states his duty performance began to suffer and he advised his chain of command that he "was leaving" to seek better medical care.  He also states that his health continued to worsen and caused chronic lung collapses [spontaneous pneumothorax] and breathing problems.  He adds that it was 2 years before he decided to turn himself in to military authorities at Fort Hamilton, New York.

	e.  He states he did not fully understand the repercussions of his actions at the time, but his health required attention and he did what he thought was best.

3.  The applicant provides copies of 16 documents that include certificates, evaluation reports, and his 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 the Regular Army (RA) for a period of 3 years on 2 June 1976.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).

3.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant was honorably discharged on 26 December 1978 to reenlist in the RA.  At the time he had completed 2 years, 6 months, and 25 days of net active service.

4.  The applicant reenlisted in the RA for a period of 4 years on 27 December 1978.

5.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 4 (Assignment Considerations) he was permanently disqualified from airborne training based on his self-imposed withdrawal on 5 October 1976 due to not being adaptable to airborne training (lack of motivation);

	b.  item 5 (Oversea Service) he served in U.S. Army Europe (Germany) from 21 November 1976 through 29 May 1979; and

6.  The applicant's DA Form 2A (Personnel Qualification Record - Part I), dated 7 January 1981, shows in item 30 (PULHES) the entry "111111."

7.  Three DA Forms 4187 (Personnel Actions) show the applicant's duty status was changed:

	a.  from present for duty (PDY) to absent without leave (AWOL) effective 17 April 1981,

	b.  from AWOL to dropped from the rolls (DFR) effective 17 May 1981, and

	c.  from DFR to PDY effective 22 August 1983.

8.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 17 April 1981 to 22 August 1983.

9.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

10.  A DA Form 31 (Request and Authority for Leave) signed by the applicant on 23 August 1983 shows he requested excess leave beginning 26 August 1983.  The applicant also indicated he desired to be discharged in absentia.

11.  Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, Orders 279-93, dated 6 October 1983, shows in:

	a.  paragraph 1 that the applicant was reduced from sergeant/E-5 to private/E-1 effective 23 September 1983 and

	b.  paragraph 2 that the applicant was assigned to the U.S. Army Separation Transfer Point on 18 October 1983.  The additional instructions state, "Individual authorized to be discharged in absentia under the provisions of Army Regulation 
635-200 (Personnel Separations)."

12.  A second DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered this period of active duty on 27 December 1978 and he was discharged on 18 October 1983 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial with service characterized as under other than honorable conditions.  At the time he had completed 2 years, 8 months, and 17 days of net active service this period.

	a.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 17 April 1981 through 21 May 1983.

	b.  Item 18 (Remarks) shows he was in an excess leave status from 26 August to 18 October 1983.

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

14.  The applicant provides the following documents.

	a.  Four certificates of achievement/recognition, two letters of appreciation, and three evaluation reports spanning the period August 1976 through July 1980 attest to the applicant's outstanding duty performance and achievements.

	b.  A U.S. Army medical record and two laboratory reports show the applicant was admitted to the hospital on 10 January 1979, the final diagnosis was left spontaneous pneumothorax, and the applicant was discharged from the hospital and returned to active duty on 21 February 1979.

	c.  A civilian medical record and laboratory report, dated 15-16 April 1980, show the cardiologist indicated the applicant had pneumonia in 1978 and spontaneous left pneumothorax in January 1979.  He stated the applicant subsequently developed paresthesia and sharp pain in his left lower chest and it was suspected the applicant had chronic bronchitis.  The applicant was referred for further examination on 23 April 1980, but did not keep his appointment.

	d.  A civilian medical record documenting an office visit, dated 16 March 1984, shows the attending physician noted the applicant had been hospitalized previously (i.e., 12-19 November 1983 and 14-16 February 1984).  It also shows he was being seen at that time for spontaneous pneumothorax, significant pneumothoraces on both left and right side, chronic cough and sputum production, and a collapsed lung.  The physician noted that the applicant must be seen for follow-up examinations.

15.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Table 7-1 (Physical Profile Functional Capacity Guide) provides instructions for developing the physical profile serial (i.e., P-physical, U-upper, L-lower, H-hearing, E-eyes, and S-psychiatric) and shows that numeral 1 is assigned to show good physical capacity and no demonstrable or identified defects.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 3-1 (Standards of Unfitness Because of Physical Disability) provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-2 (Presumptions), subparagraph b, provides that when a Soldier is being separated or retired for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit.  The presumption of fitness can be overcome if the evidence establishes that he or she was unable to perform his or her duties, or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

17.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Chapter 3, paragraph 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.

	c.  Chapter 3, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the character of service of his discharge under other than honorable conditions should be upgraded to honorable and the reason changed to medical disability because Army medical officials provided him minimal medical care, his chain of command demonstrated no care or concern for his situation, and he advised his chain of command that he was leaving to seek better medical care.

2.  The applicant's contention and the medical records he provides were carefully considered.

	a.  The U.S. Army medical records he provides show he was admitted to the Army hospital on 10 January 1979, discharged from the hospital on 21 February 1979, and returned to active duty.

	b.  The evidence of record shows the applicant was seen by a civilian cardiologist on 16 April 1980 for paresthesia and sharp pain in his left lower chest and it was suspected the applicant had chronic bronchitis.  The applicant was referred for further examination on 23 April 1980, but did not keep his appointment.

	c.  The applicant's DA Form 2A, which was prepared 3 months before he departed AWOL, shows he had a physical profile of "111111."

	d.  The applicant was AWOL on 17 April 1981 and remained in an AWOL status through 22 August 1983.

	e.  Upon his request, the applicant was discharged in absentia on 18 October 1983.

	f.  A civilian medical record, dated 16 March 1984, shows the applicant had been hospitalized on two occasions and that both of these hospitalizations were subsequent to his discharge from the U.S. Army.  Thus, the applicant's contention that he advised his chain of command that he was leaving [and went AWOL] to seek better medical care is not supported by the evidence of record.

3.  There is no evidence and the applicant provides insufficient evidence to show he was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.

4.  Lacking evidence to the contrary, it is presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Therefore, the type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  Records show the applicant was AWOL for more than 2 years and he completed only about 2 years and 9 months of his 4-year active duty obligation.  Thus, the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

6.  In view of all 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)                                         AR20100014580



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ABCMR Record of Proceedings (cont)                                         AR20100014580



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