IN THE CASE OF:	  

		BOARD DATE:	    31 March 2011

		DOCKET NUMBER:  AR20100022709 


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 discharge "from undesirable to medical."

2.  He states, in effect, he was injured in Kaiserslautern, Germany, by a bullet fired at his head and an injury to his left knee which occurred at the same time.  This led to mental instability and a permanent knee injury.

3.  He provides copies of medical records from The Guilford Center and the North Carolina Department of Corrections.

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 was inducted into the Army of the United States on 11 March 1971.

3.  Special Court-Martial Order Number 951, issued by Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY, on 16 September 1971 shows he was found guilty of being absent without leave (AWOL) from on or about 4 June to 18 August 1971.  He was sentenced to be confined at hard labor for 3 months, to forfeit $70.00 pay per month for 3 months, and to be reduced to private (PVT)/E-1.  The portions of the sentence pertaining to forfeiture of pay and confinement were later remitted.

4.  On 18 January 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 5 January to 12 January 1972.  His punishment was forfeiture of $50.00 pay per month for 2 months.

5.  On 9 March 1972, he again accepted NJP under Article 15 of the UCMJ for being AWOL from on or about 13 February to 8 March 1972.  His punishment was reduction to PVT/E-1 and forfeiture of $50.00 pay per month for 2 months.

6.  Special Court-Martial Order Number 49, issued by Headquarters Command, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, on 11 April 1973 shows he was found guilty of two specifications of being AWOL from on or about 20 July to 7 November 1972 and from on or about 13 November 1972 to 7 February 1973.  He was sentenced to be reduced to PVT/E-1, to forfeit $100.00 pay per month for 4 months, and to be confined at hard labor for 4 months.

7.  Item 44 (Time Lost) of a temporary DA Form 20 (Enlisted Qualification Record) shows he was AWOL or confined during the following periods.

AWOL
Confinement
* 3 to 5 May 1971
* 7 February to 2 April 1973
* 4 June to 17 August 1971
* 3 April to 31 May 1973
* 5 to 11 January 1972

* 13 February to 7 March 1972

* 20 July to 6 November 1972

* 13 November 1972 to 6 February 1973

* 8 August to 1 October 1973

* 4 to 14 October 1973

8.  The record is void of documentation showing he received a head injury during his Army service.  A Standard Form 513 (Consultation Sheet) shows he was seen by a physician at Fort Riley, KS, on 21 May 1973 for a complaint of pain in his left knee.  The physician found no history of trauma and an x-ray showed his knee was normal.

9.  A Standard Form 88 (Report of Medical Examination) and a Standard Form 93 (Report of Medical History) show he received a medical examination on 23 October 1973.  He stated his health was good.  The examining physician found no significant history of medical problems and found him fit for administrative action under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 7 or 10.

10.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 24 October 1973, shows he had no significant mental illness, was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

11.  Special Orders Number 12 Extract issued by Headquarters, XVIII Airborne Corps and Fort Bragg on 17 January 1974 show he was discharged under the provisions of Army Regulation 635-200 effective 15 January 1974.  The orders show the type of discharge as under conditions other than honorable and the reason for discharge as "good of service."

12.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is not available in his record.

13.  On 23 September 1981, the Office of the Adjutant General informed him the Army Discharge Review Board (ADRB) had denied his request for a change in the type and nature of his discharge.

14.  The ADRB Case Report and Directive shows:

* he was charged with two specifications of being AWOL from 8 August to 2 October 1973 and from 4 October to 15 October 1973
* on 19 October 1973, he requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10
* he consulted with counsel
* his chain of command recommended approval with an undesirable discharge
* on 12 November 1973, the approval authority approved the request and directed issuance of an undesirable discharge

15.  The medical records he provides document treatment he received subsequent to his Army service.  These records show he was diagnosed with schizophrenia after his Army service, but do not show evidence of injuries or illness incurred during his service.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  The regulation is not applicable to members charged with offenses for which dismissal or a punitive discharge may be adjudged by a court-martial.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) states 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 evidence of record does not support the applicant's request for correction of his record to show he was discharged for medical reasons.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The ADRB found that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Because he was charged with an offense for which a punitive discharge could be adjudged by a court-martial, he was not eligible for a physical disability evaluation for the purpose of separation.  Regardless of that fact, the evidence of record shows the physical examination and mental evaluation conducted in conjunction with his separation processing found him physically and mentally fit for service.

4.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20100022709



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ABCMR Record of Proceedings (cont)                                         AR20100022709



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