BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100022713 


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, through his Member of Congress, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, he was born with Celiac disease which attacks your mind and body.  During his period of active service he was not diagnosed with the disease.  In 2000 doctors found the cause of the disease.  Additionally, he states that his medical report states his condition is terminal and he has a very short time to live.  He would like to have his military records corrected.

3.  The applicant provides a copy of a medical document listing his present diagnosis and a copy of his DD Form 214 (Report of Separation and Record of Service).

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 2 February 1973.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 71B (Clerk).  The highest rank/grade he attained during his military service was private first class/E3.   He was assigned to Fort Hood, TX.

3.  His record reveals his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 18 April to 24 April 1974.  His punishment consisted of reduction to private/E2, a forfeiture of $80 pay and extra duty for 14 days.

4.  On 6 August 1974, he again departed his unit in an AWOL status and he was dropped from the rolls of the Army on 4 September 1974.  

5.  On 15 October 1974, he was apprehended by civil authorities in Houston, TX. He was returned to military authorities and placed in pre-trial confinement at Fort Hood.

6.  On 7 November 1974, court-martial charges were preferred against him for one specification of being AWOL from on or about 6 August through 
4 September 1974.

7.  On 12 November 1974, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested 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.

8.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion and he indicated that he had been advised of the implications that were attached to his request.  He also indicated he understood by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances does he desire further rehabilitation and have no desire to perform further military service.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 
9.  He submitted a statement in his own behalf in which he stated that after spending one year and 9 months in the military, he was not able to cope with military life.  He stated that he has had nothing but trouble in every job that he has been given, he and his wife were separated and he has lost all of his furniture.  He requested the discharge because he felt that he and his family would be better off out and away from the Army.  The military life was not for him, ever.

10.  On 20 November 1974, his commander and intermediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 3 December 1974, the separation authority approved his request for discharge for the good of the service in accordance with Army Regulation 
635-200, chapter 10 and directed that he be issued an Undesirable Discharge Certificate.  On 20 December 1974, he was accordingly discharged.  

12.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a DD Form 258A (Undesirable Discharge Certificate).  He completed a total of 1 year, 7 months, and 9 days of creditable active military service and he had 101 days of lost time.  

13.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15-year statute of limitations.  

14.  According to the MAYO Clinic website:  www.mayoclinic.com Celiac disease is a digestive condition triggered by the consumption of the protein gluten, which is primarily found in bread, pasta, cookies, pizza crust and many other foods containing wheat, barley or rye.  People with Celiac disease who eat foods containing gluten experience an immune reaction in their small intestines, causing damage to the inner surface of the small intestine and an inability to absorb certain nutrients.  Celiac disease can cause abdominal pain and diarrhea. Eventually, the decreased absorption of nutrients that occurs with Celiac disease can cause vitamin deficiencies that deprive your brain, peripheral nervous system, bones, liver and other organs of vital nourishment.  There is no known cure for Celiac disease.  However, this disease can be managed by changing one’s diet.





15.  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.  At the time, an undesirable discharge was normally issued.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-200, 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 that his discharge should be upgraded because his medical condition (Celiac disease) contributed to his actions which led to his discharge.  However, there is no medical evidence that indicates Celiac disease causes behavioral problems or that it would contribute to the use of bad judgment.  In fact the applicant admitted that he was not diagnosed with this disease until many years after he had been discharged.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The FSM voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

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)                                         AR20100022713



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ABCMR Record of Proceedings (cont)                                         AR20100022713



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