IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100021874 


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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that although he was previously denied relief, he believes the Board did not have his service medical records which would have shown he was injured in a jeep accident during a training exercise.  His injury was in the line of duty.  He continued to experience severe pain until his discharge, but the hospital at Fort Bragg, NC, was unable to effectively treat him.  The three instances of being absent without leave (AWOL) which ultimately led to his discharge were incurred in his attempt to seek civilian treatment to relieve the pain he was experiencing.

3.  The applicant also states he joined the Army to serve his country.  He was injured in jeep accident and he was given a 30-day temporary physical profile by the hospital.  However, his unit first sergeant refused the doctor's orders and required him to participate in training.  He decided to be AWOL to seek treatment.  Being a young Soldier and denied the medical attention, he regrets that he took it upon himself to be AWOL and to seek help for his pain and injuries.  He adds that he is enclosing copies of all his service medical records; however, no documents were enclosed with his application.  Additionally, he states that the Oakland Regional Office of the Department of Veterans Affairs has his entire personnel and service records.

4.  The applicant did not provide any additional evidence.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel states the applicant requests reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge.

2.  Counsel states the applicant received a letter of appreciation shortly after his entry on active duty.  His performance was very good until he was involved in a jeep accident in November 1968.  The accident caused a low back injury which impaired his ability to perform his military duties.  He was hospitalized between 12 and 20 November 1968.  However, after his discharge from the hospital, he was involved in a slip-and-fall accident on 20 November 1968 during which he reinjured his lower back.  From this point on, his problems started with the Army. 
He was AWOL on several occasions in an attempt to try to find adequate medical treatment to help deal with his pain.  This led to his court-martial and ultimate discharge from the Army.  Counsel requested a copy of the examiner's brief before the Board decides the case.

3.  Counsel did not provide additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050008767 on 9 March 2006.

2.  The applicant and his counsel submitted a new argument which, although not received within 1 year of the original Board decision, was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and warrants consideration by the Board as an exception to policy.

3.  The applicant's records show he was born on 13 April 1950 and he enlisted in the Regular Army 1 month shy of his 18th birthday on 4 March 1968 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  The highest rank he attained during his military service was private first class/E-3.

4.  His records show he was awarded the National Defense Service Medal and the Parachutist Badge.  He was also awarded a certificate of appreciation on 21 June 1968 for outstanding physical training proficiency test results.

5.  On 5 February 1969, he pled guilty and was convicted by a special court-martial at Fort Bragg, NC, of one specification of being AWOL from 10 to 22 January 1969.  The court sentenced him to confinement at hard labor for 6 months, a forfeiture of $70.00 pay per month for 6 months, and a reduction to the lowest enlisted grade.

6.  On 18 February 1969, the convening authority approved a lesser sentence of confinement at hard labor for 3 months (suspended for 3 months), a forfeiture of $70.00 pay per month for 6 months, and a reduction to the lowest enlisted grade.

7.  On 7 November 1969, he again pled guilty and was convicted by yet another special court-martial of two specifications of being AWOL from 27 to 28 May 1969 and from 28 May to 6 October 1969.  The court sentenced him to confinement at hard labor for 5 months and a forfeiture of $82.00 pay per month for 5 months.

8.  On 3 February 1970, the convening authority approved a lesser sentence of confinement at hard labor for 106 days.

9.  The complete and specific facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain:

	a.  Special Orders Number 25, Headquarters, Presidio of San Francisco, CA, dated 3 February 1970, ordering his discharge from active duty under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness; and

	b.  a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was discharged from the Army on 6 February 1970 in the rank/grade of private/E-1 under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under honorable conditions.  He was issued a DD Form 258A (Undesirable Discharge Certificate).  His DD Form 214 further shows he completed 1 year, 4 months, and 10 days of creditable active service during this period and he had 203 days of lost time.

10.  His service medical records are not available for review with this case.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:

* frequent incidents of a discreditable nature with civil or military authorities
* sexual perversion
* drug addiction
* an established pattern of shirking
* an established pattern showing dishonorable failure to pay just debts

13.  Army Regulation 635-212 also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.

	a.  Paragraph 3-7a 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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded.

2.  With respect to his age, the evidence of record shows he was nearly 18 years of age at the time he enlisted.  He was 18 years and 9 months of age when he was AWOL the first time and 19 years of age the second time.  However, there is no evidence that his extensive history of AWOL was a result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their terms of service.

3.  With respect to his medical condition, his service medical records are not available for review with this case and he did not submit a copy of his records.  Even if he suffered an injury during his service, there is no evidence that this injury would have caused him to be AWOL.  He did not provide supporting medical documents that show the specific medical conditions during his military service or the disposition of such conditions or how his injuries caused him to be AWOL.  It appears there would have been other avenues to resolve his medical issues had he chosen to use them.

4.  His record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 6 February 1970 under the provisions of Army Regulation 635-212 by reason of unfitness with an under other than honorable conditions discharge.

5.  Absent evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

7.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.

8.  The Board noted the applicant's counsel requested a copy of the examiner's brief before the Board decides the case.  However, there is no provision in the regulation that governs the operations of the ABCMR to do so.  Counsel may request the same service records reviewed by this Board from the appropriate records custodian and examine the applicant's service records at any time.

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 to amend the decision of the ABCMR set forth in Docket Number AR20050008767, dated 9 March 2006.



      _______ _   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)                                         AR20100021874



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ABCMR Record of Proceedings (cont)                                         AR20100021874



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