IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100015064 


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 correction of his records to show that he was honorably discharged due to medical reasons.

2.  The applicant states:

* He found out he had a hereditary disease (Muscular Dystrophy Myotonic)
* He could not perform his duties and he went absent without leave (AWOL)
* He tried his best to be a good Soldier and he did not find out until the early 1990's what was wrong with him
* He would like his records corrected to show he was discharged through medical channels with entitlement to all benefits

3.  The applicant provides:

* A letter from his Representative in Congress, dated 27 April 2010
* An undated self-authored letter
* Doctor’s notes dated in 2009
* Website printouts pertaining to Muscular Distrophy

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 on 4 April 1985.  He completed training as a combat engineer.

3.  On 22 July 1986, the applicant was notified that charges were pending against him for being AWOL from 2 June 1986 to 14 July 1986.  He acknowledged receipt of the notification on 22 July 1986 and, after consulting with counsel, he submitted a 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 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 Veterans Administration (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

4.  On 15 August 1986, the appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.  Accordingly, on 9 September 1986, the applicant was discharged under the provisions of Army Regulations 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had completed 1 year, 3 months, and 24 days of net active service this period.

5.  A review of the available records fails to show the applicant was diagnosed with any medical condition that would have warranted his processing through medical channels while he was in the Army.

6.  The applicant's records do not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  The applicant provides a self-authored letter stating:

* He was getting weak and tired and he told his platoon leader
* His platoon leader told him he needed to see a doctor
* He was told he may be experiencing severe arthritis
* He was told to “take it slow” and to rest
* His condition only got worse and he continued to see the doctor who prescribed medication
* He could no longer perform his duties as a Soldier and his platoon leader was advised of his condition
* He was accused of being lazy and as a result he went AWOL
* He was arrested and jailed and ultimately, he was discharged from the Army under other than honorable conditions
* He drove a truck until 2007 and that is when he discovered the “root of his problems”
* His disease is hereditary and he should have been given an honorable discharge for medical reasons so that he may receive veterans benefits
* He tried to be a good Soldier but his body could no longer “take it”
* His condition was only getting worse with his age and if he is entitled to any percentage of disability to help ease his financial burden, he should be awarded that percentage of disability

8.  He also provides prescriptions and medical documentation showing that since the year 2009, he has been diagnosed as being disabled.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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 honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason of other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, they are not substantiated by the evidence of record.  There is no evidence in his record, nor had he submitted any evidence, showing he was suffering from a medical condition that would have warranted processing him for discharge through medical channels while he was in the Army.

2.  The applicant’s records show he went AWOL on 2 June 1986 and he remained absent in desertion until he was apprehended by civil authorities and returned to military control on 22 July 1986.  He voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

3.  The applicant went AWOL and his record contains no explanation as to why he went AWOL.  His service medical records are not available, and his record does not contain a medical diagnosis of Muscular Dystrophy nor do they show he was unable to perform his duties while he was in the Army.  His record indicates that the type of discharge he received and the reason, therefore, were proper.  The fact that he now desires veteran’s benefits is not a sufficient justification for upgrading his discharge or for changed his reason for discharge.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.


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)                                         AR20100015064



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ABCMR Record of Proceedings (cont)                                         AR20100015064



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