BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100024641 


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 previous request to upgrade his under other than honorable conditions discharge to a general discharge.

2.  He states this has been an important and long-standing issue that has affected him for more than 20 years.  He is deeply regretful for his lack of judgment.  Upon graduating from high school he thought of the military as a means for college via the Montgomery GI Bill.  During advanced individual training he received a Letter of Commendation for outstanding physical fitness.  While on leave during Christmas, he slipped and fell from his roof while fixing Christmas lights, and injured his back and leg.  He notified his unit and he was instructed to report to Homestead Air Force Base on 26 January 1988.  He was later transferred to Winn Army Hospital, Fort Stewart, GA, where he stayed for about 2 months undergoing rehabilitation and physical therapy.

3.  He also states that on 14 March 1988 he was told he was going to be placed on medical hold for a medical discharge, which he did not want.  He never got to speak to anyone regarding an alternative for service until he was able to return to his unit.  The March 1988 medical notes stated he was to begin convalescent leave and return in 4 weeks for readmission and assignment to medical hold.  On 11 April 1988, the clinical medical notes stated, in effect, he was to be discharged and returned to duty, he was not AWOL.  The 12 April 1988 Narrative Summary stated "he was placed on convalescent leave for 4 weeks on 11 April 1988."  "In the surgeon's absence, the patient returned from convalescent leave and was returned to duty."

4.  He further states, in effect, the medical notes and summaries which stated he was returned to the hospital on 11 April 1988 and discharged to active duty are false.  They suggest that at the time he was fine and he apparently just left his unit.  He voluntarily turned himself in to authorities.  The charge sheet implied he just deserted his unit.  He felt he had no choice other than to deal with the charge at hand.  Although he was not coerced into accepting a discharge under the provisions of chapter 10, the idea of facing court-martial at the time seemed much worse.  As a group, they were out-processed expeditiously in assembly line fashion.  He hopes the Board will consider the circumstances as well as his performance prior to the discharge action and his accomplishments since he was separated.

5.  The applicant provides:

* Letter of Commendation, dated 14 August 1987
* Standard Form (SF) 502 (Medical Record - Narrative Summary (Clinical Résumé)
* DA Form 4256 (Clinical Record - Doctor's Orders
* Therapeutic Documentation Care Plan
* DD Form 458 (Charge Sheet)
* Characterization of Service Checklist
* 2005 Doctor of the Year Award
* A Letter of Recommendation, dated 14 September 2010

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 AR20090005634, on 27 August 2009.

2.  The applicant provided a Letter of Commendation, SF 502, DA Form 4258, Therapeutic Documentation Care Plan, Characterization of Service Checklist, and a Letter of Recommendation.  These documents are new evidence that will be considered by the Board.  All other documents provided were previously available to the Board.

3.  His military records show he enlisted in the Regular Army in pay grade E-1 on 22 April 1987 for 3 years.  He completed training and was awarded military occupational specialty 13F (Fire Support Specialist).  

4.  The U.S. Army Field Artillery Training Center, Fort Sill, OK, presented him a Letter of Commendation on 14 August 1987 for outstanding performance on the physical fitness test.

5.  On 23 October 1987, he was assigned to Headquarters and Headquarters Company, 75th Infantry Ranger Regiment, Fort Stewart, GA.

6.  He provided an SF 502, dated 11 April 1988, that shows he was evaluated in the Emergency Room on 27 December 1987 after he fell from the roof of a 
13 foot building and landed on his left side and head.  He was treated with muscle relaxants and Motrin.  He was reevaluated on 26 January 1988 at Homestead Air Force Base.  On 16 February 1988, he was admitted to the Army Hospital at Fort Stewart, GA.  He was diagnosed with chronic low back pain.  He underwent examinations, evaluations, x-rays, and therapy.  On 14 March 1988, he was placed on convalescent leave for 4 weeks with instructions to return on 11 April 1988.  In the surgeon's absence he was returned to duty on 11 April 1988.

7.  He also provided a DA Form 4256, dated 9 March 1988, that shows he was returned to duty on 11 April 1988 and he was not AWOL.  A Therapeutic Documentation Care Plan for March 1988 stated he began 4 weeks convalescent leave on 14 March 1988 and he was to return to the ward for readmission and assignment to medical hold.

8.  There is no evidence he was placed on medical hold or referred to a medical evaluation board or a physical evaluation board for consideration of any medical condition(s) during his period of active duty.

9.  He was reported AWOL on 12 April 1988 and dropped from the rolls of his unit on 12 May 1988.  

10.  On 15 June 1989, a DD Form 458 was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  He was charged with one specification of being AWOL from 12 April 1988 to on or about 12 June 1989.

11.  On 15 June 1989, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request, he admitted guilt to the charge and acknowledged he understood he could be issued a bad conduct discharge or be discharged under other than honorable conditions.  He also acknowledged he understood the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.  He also elected not to undergo a separation examination.

12.  On 16 June 1989, the applicant’s immediate commander recommended approval of the applicant’s request with an under other than honorable conditions discharge.  The commander stated the applicant's conduct had rendered him triable by court-martial under circumstances which could leave to a bad conduct or dishonorable discharge.

13.  On 7 July 1989, the separation authority approved the applicant’s request and directed that he be reduced to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.

14.  Accordingly, he was discharged on 5 October 1989, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of court-martial, in pay grade E-1, with an under other than honorable conditions discharge.  He was credited with completing 1 year, 3 months, and 14 days of active service and he had lost time from 12 April 1988 through 11 June 1989.  His DD Form 214 also shows he was placed in an excess leave status from 
16 June to 5 October 1989.

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

16.  He further provided a Letter of Recommendation attesting to his loyalty to his patients, extensive practice background, and that he would be an asset to his team.

17.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who had 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.

18.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention has been noted.  However, the evidence of record shows in February 1988, he was admitted to an Army hospital due to an earlier injury.  He was subsequently diagnosed with chronic low back pain.  On 14 March 1988, he was placed on 4 weeks of convalescent leave.  

3.  There is no evidence he was placed on medical hold or referred to a medical evaluation board or a physical evaluation board for consideration of a medical condition.  He was scheduled to return to duty on 11 April 1988.  He departed AWOL on 12 April 1988. 

4.  Upon his return to military control he was charged with one specification of AWOL from 12 April 1988 to on or about 12 June 1989.  After consulting with counsel, he voluntarily requested a discharge and in doing so he admitted guilt to the stipulated offenses.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  He also acknowledged he understood he could be discharged under other than honorable conditions.

5.  He has not shown he was unjustly charged with the period of AWOL.  He has provided insufficient evidence to show his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would have jeopardized his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

6.  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090005634, dated 27 August 2009.



      _______ _   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)                                         AR20100024641



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ABCMR Record of Proceedings (cont)                                         AR20100024641



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