IN THE CASE OF:	

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100030329 


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 under other than honorable conditions (UOTHC) be changed to a medical discharge.

2.  The applicant states that he was pushed off his top bunk by a drill sergeant and injured his left eye when he was in basic training.  He was not allowed to see a doctor while in basic training or when he reported for advanced individual training (AIT) at Fort Polk, LA.  He sought medical attention at Offutt Air Force Base, NE, while he was on a 3-day pass.  When his unit at Fort Polk found out, he was told he was a deserter and to leave the post.  He immediately returned to Omaha, NE, without authority and was eventually arrested for being absent without leave (AWOL) and taken to Fort Riley, KS.  He was told he would receive a medical discharge; however, he received an undesirable discharge in the mail.

3.  The applicant provides copies of:

* a photograph he claims shows him covering his swollen and bloodshot left eye
* medical examination and consultation forms covering the period 29 December 1972 to 14 March 1973
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 10 October 1973
* a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States, dated 15 November 2010



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 enlisted in the Regular Army on 29 December 1972.  He completed basic combat training and reported to Fort Polk, LA, for AIT on 12 March 1973.

3.  Records show charges were preferred against him on 3 August 1973 for being AWOL from 20 March until on or about 22 May 1973 and from 11 June until on or about 17 July 1973.

4.  The applicant's discharge processing documentation is not available; however, his DD Form 214 shows he was discharged on 10 October 1973 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service.  He was issued a UOTHC discharge.  He completed 5 months and 12 days of total active service and had 120 days of lost time.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  A review of the applicant's available medical records shows that he was referred to and seen at the Optometry Clinic on 7 January 1973 due to a "lesion in macular area."  The provisional diagnosis shows "retention."  A Standard Form 88 (Report of Medical Examination), dated 8 August 1973, does not show any comments related to the applicant's vision and he signed his name in item 73 (Notes and Significant or Interval History) under the statement, "I am in good health."

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement. or Separation), paragraph 2-2b as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that an acute grave illness or injury or other deterioration of a physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states that 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 applicant contends his UOTHC discharge should be changed to a medical discharge.  He claims he was injured in basic training and he was denied medical care from the Army so he went AWOL.  He was later arrested and returned to military control.  He was sent home to await his discharge and he received an undesirable discharge rather than medical discharge.

2.  He has not provided any evidence to corroborate his contention that he was not allowed to receive medical care from the Army.  The evidence shows the issue with his left eye was examined and he was retained.

3.  The Army regulation governing the Board's operation requires that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  There is no evidence of record and the applicant did not provide any evidence to the contrary.  Therefore, there is no basis for changing his discharge.



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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20100030329



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