IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100022233 


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 characterized as under other than honorable conditions be changed to a medical discharge.

2.  He states, in effect, he needs his discharge upgraded to qualify for Department of Veterans Affairs (VA) medical benefits.

3.  He provides no additional evidence in support of his application.

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's record shows he enlisted in the Regular Army on 13 November 1979.

3.  On 3 April 1981, charges were preferred against him for being absent without leave (AWOL) from 29 April 1980 to 5 May 1980 and from 7 May 1980 to 25 March 1981.

4.  On 26 March 1981, he signed a disposition form stating that he did "not request a physical examination."  He signed this form indicating he understood that if he wished to undergo a medical examination prior to his discharge he must submit a request to the commander of the medical treatment facility.  He said he was aware that the purpose of the examination was to insure his medical records reflected, as accurately as possible, his state of health upon separation and to protect his interests and those of the government.

5.  On 3 April 1981, he underwent a mental status evaluation that found him to be fully oriented and alert.  His behavior and thought content were listed as normal.  His thinking process was clear and his memory was good.  The medical personnel noted no significant mental illness and found that he was mentally responsible and had the mental capacity to understand and participate in board proceedings.

6.  On 7 April 1981, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  On the same date, he signed a request for discharge.  He indicated that he was making the request under his own free will and that he was afforded the opportunity to speak with counsel.  He acknowledged he understood that he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all VA benefits, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to submit a statement in his behalf.

8.  On an unspecified date, the appropriate authority approved his request for discharge for the good of the service in lieu of trial by court-martial.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a characterization of service listed as under other than honorable conditions on 10 July 1981.  He completed 9 months and 1 day of creditable service with 323 days of lost time due to being AWOL.

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

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation is an indication the individual is fit.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided any which shows he was physically unfit to perform his duties at the time of separation.  He declined a physical examination at the time of his separation and his mental evaluation, conducted on 3 April 1981 by a competent medical authority, determined he was mentally qualified for separation.

2.  Additionally, there are no provisions in Army regulations that allow changing a discharge for the sole purpose of securing veterans' benefits.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the change.

3.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100022233



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ABCMR Record of Proceedings (cont)                                         AR20100022233



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