IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100015282 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.  He also requests his separation program designator (SPD) and reentry eligibility (RE) codes be changed to qualify him to enlist.

2.  The applicant states he was diagnosed with exercise-induced asthma on 15 January 1991.  He states his commander told him he would not allow him to receive a discharge because he believed he was bluffing his illness.  The applicant states that upon word of a Congressional inquiry, his commander notified his doctor that under no circumstances would he "place the final authorization" for his administrative discharge.  The doctor informed the applicant on subsequent visits that his hands were tied because of the conference with his commander.  The applicant was ordered to see another doctor for another medical review and the other doctor also diagnosed him with exercise-induced asthma.  He was disenrolled from Electronic Warfare Aviation Systems Repairer training and ordered to report to Fort Knox, KY, for M1 Armor Crewman training.  He did not report due to his fear for his health.  Meanwhile he was constantly placed in situations that were extremely painful due to his asthma and he was exposed to constant ridicule by his superiors.  He did not ask for a medical discharge at any time.  All he asked for was an honorable discharge so he could carry out a respectable life after military service.


3.  The applicant provides copies of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 3 September 1992
* 13 pages from his service medical records dated from 14 January 1991 to 26 August 1991
* a letter, dated 13 April 1992, from his attorney to the U.S. Army Deserter Information Point, Fort Benjamin Harrison, IN
* a page from Army Regulation 40-501 (Standards of Medical Fitness)
* his class grade sheet
* a letter, dated 28 August 1991, from the U.S. Army Medical Department Activity at Fort Devens, MA
* a letter, dated 3 September 1991, from Headquarters, Fort Devens, Fort Devens, MA
* his Texas driver's license

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 31 July 1990 for a period of 6 years.

3.  On 6 October 1990, the applicant was assigned to the Trainee Company, Military Intelligence Brigade at Fort Devens, MA, for advanced individual training in military occupational specialty 33R (Electronic Warfare Aviation Systems Repairer).

4.  The applicant's service medical records show he was diagnosed with exercise-induced asthma on 14 January 1991.  Notes, dated 22 January 1991, indicate he was to take two whiffs of Albuterol prior to exercise and two whiffs every 4 hours while engaged in activity requiring exertion.  Notes, dated 20 and 24 July 1991, refer to administrative separation based on a condition (asthma) existing prior to service.  A note, dated 7 August 1991, indicated the applicant's asthma was not severe enough or expected to become severe enough for medical separation.  A note, dated 28 August 1991, indicated there wasn't enough evidence of asthma interfering with his military occupational specialty to disqualify him from service.

5.  In a letter, dated 28 August 1991, the Chief, Outpatient Clinic, U.S. Army Medical Department Activity, Fort Devens, MA, advised the applicant's commander that he was fit for full duty.  He stated at no time was the applicant counseled that his medication use would interfere with his performance of duty or compromise the health or safety of fellow Soldiers.  He is qualified for worldwide assignment.  He stated the recommendation for discharge made on 24 July 1991 was based on the applicant's failure to meet procurement standards.  However, the applicant had served over 120 days on active duty.  Therefore, induction standards no longer applied to him.  He stated a disability is not present and the applicant would perform well when taking prescribed medication.

6.  In a letter, dated 3 September 1991, the Adjutant General (AG), Headquarters, Fort Devens, MA, advised the applicant's Congressional representative that the applicant's condition was not severe enough to warrant a medical discharge.  The AG also stated the applicant was recommended for academic disenrollment from the 33R course and, if approved, would be sent to another training site for retraining.  The AG stated the chain of command believed the applicant had the ability to become a productive Soldier.

7.  On 11 September 1991, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

* failure to go at the time prescribed to his appointed place of duty
* feigning illness for the purpose of avoiding his duty
* making a false official statement to a noncommissioned officer

8.  The applicant was ordered to report to the U.S. Army Armor School at Fort Knox, KY, on 20 September 1991.  He failed to report.

9.  On 15 July 1992, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 20 September 1991 to on or about 13 July 1992.

10.  The applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the elements of the offense he was being charged with and that he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be furnished an Under Other Than Honorable Conditions Discharge Certificate

11.  In addition, the applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

12.  He did not submit a statement in his own behalf.  He indicated he did not desire a physical evaluation prior to separation.

13.  The appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and directed he receive an under other than honorable conditions discharge.

14.  On 3 September 1992, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.  He completed 1 year, 3 months, and 11 days of net active service that was characterized as under other than honorable conditions.  He had 294 days of lost time.  He was assigned SPD code KFS and RE code 3.

15.  On 24 June 2005, the Army Discharge Review Board (ADRB) reviewed and upgraded the characterization of the applicant's discharge to general under honorable conditions.  However, the ADRB determined the reason for his discharge was proper.

16.  Army Regulation 635-5-1 (Separation Program Designator Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The SPD code KFS as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "for the good of the service - in lieu of court-martial."

13.  The SPD/RE Code Cross-Reference Table, then in effect, showed the appropriate RE code for SPD code KFS is 3.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions was normally considered appropriate.

15.  Army Regulation 635-200 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded to an honorable discharge.  He also contends his SPD and RE codes should be changed so he can enlist.  He contends he had problems due to his asthma condition.

2.  The ADRB upgraded his discharge on 24 June 2005 to a general discharge under honorable conditions.

3.  The medical evidence shows that although the applicant was diagnosed with asthma, there was no indication this condition interfered with his performance.  He was dropped from 33R training due to academic not medical reasons.  In fact, the Chief of the Outpatient Clinic at Fort Devens stated the applicant's asthma was not severe enough to be a disability.  The Fort Devens AG stated the chain of command believed the applicant had the ability to become a productive Soldier.  Therefore, the applicant's diagnosis and treatment for his asthma was not considered a mitigating factor in the determination of this case.

4.  The applicant, of his own volition, chose not to report to his next assignment and he remained AWOL for 294 days.  Although he stated he feared for his health, there is no evidence he sought treatment during the period he was AWOL.

5.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  There is no evidence of procedural or other errors that would have jeopardized his rights.

7.  The ADRB upgraded the characterization of the applicant's discharge.  However, that did not change the reason for his discharge.  He requested discharge for the good of the service in lieu of trial by court-martial.  Therefore, the SPD code he was assigned is correct.

8.  According to the SPD/RE Code Cross-Reference Table, the appropriate RE code for SPD code KFS is 3.  Therefore, the applicant's assigned RE code 3 is correct.

9.  The fact the applicant was AWOL for 294 days shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

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 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)                                         AR20100015282



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ABCMR Record of Proceedings (cont)                                         AR20100015282



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