IN THE CASE OF:	  

		BOARD DATE:	    28 July 2011

		DOCKET NUMBER:  AR20110001390 


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 be upgraded to honorable or general under honorable conditions.

2.  The applicant states:

* he was not given due process
* he was beaten up in the stockade at Fort Ord and he would agree to anything to get out of the stockade
* he was told he could apply for a discharge upgrade in 10 years
* he is seeking Department of Veterans Affairs (VA) medical care for injuries incurred during both periods of service

3.  In a statement, dated 1 April 2010, he states he had a prior period of honorable service from February 1976 to September 1978.  He was an honor graduate of the military occupational specialty MOS) 91B (Medical Specialist) School and promoted to private first class out of advanced individual training.  He reenlisted in September 1978.  In 1979, he had an opportunity to serve in a humanitarian effort in the Native American community in Gallup, NM, and during the second period of his temporary duty in Gallup he was notified he had been selected for MOS 91C (Practical Nurse) School.  There was an ongoing conflict between him being obligated to serve in Gallup and the upcoming school.  He enjoyed the work in Gallup but wanted to seek further educational development.

4.  The conflict became further complicated when he received orders for Germany.  He had been told he could go to the MOS 91C School and he was still being told he was okay to go even with orders for Germany.  When he realized his school "was not to be," his grandmother who raised him died.  At the same time the mother of his children took them away.  He took leave to go to his mother's home in Nevada, MO, for 30 days and did not return until he turned himself in at Fort Ord in 1984.  While he was absent without leave (AWOL), he returned to Gallup to work on ambulances and in the emergency room.  Being AWOL was an immature way of dealing with his frustration.  In his judgment, his reasons explain why he did not want to go back to the Army, but they do not excuse his behavior.  All he wanted was to continue to do his medical work in the Army.

5.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the period 13 September 1978
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 March 1984
* newspaper article about his humanitarian service
* VA Form 21-4138 (Statement in Support of Claim)

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.  He enlisted in the Regular Army on 5 February 1976 for a period of 3 years.  He completed his training and was awarded MOS 91B.  On 13 September 1978, he was honorably discharged for immediate reenlistment.

3.  Records show during his first enlistment he was issued temporary physical profiles for:

* torn tendons in his left hand
* torn cartilage in his right knee
* possible torn cartilage in his right knee
* lacerated tendon in his left hand
* right knee pain
* loss of motion in his left hand due to a severe injury
* chronic right knee pain
* weakness of left wrist due to old injury

4.  He reenlisted on 14 September 1978 for a period of 4 years.

5.  In March 1979, nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order.

6.  He was issued a temporary physical profile for back pain on 21 September 1979.

7.  A DA Form 4036-R (Medical and Dental Preparation for Oversea Movement), dated 19 May 1980, shows his physical profile was "111111."  This form states he met all medical qualifications in accordance with Army Regulation 40-501 (Standards of Medical Fitness).

8.  He was AWOL on 21 May 1981 and returned to military control on 31 July 1981.  He was AWOL on 1 October 1981 and returned to military control on 6 October 1981.  He was AWOL a third time on 19 October 1981 and returned to military control on 16 March 1982.  He was AWOL again on 17 March 1982 and returned to military control on 14 December 1983.  He was AWOL a fifth time on 23 December 1983 and returned to military control on 26 January 1984.  Charges were preferred against him on 1 February 1984 for the AWOL periods and for breaking restriction.  Trial by special court-martial was recommended.

9.  On 3 February 1984, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, he might be ineligible for many or all benefits administered by the VA, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

10.  On 17 February 1984, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

11.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 6 March 1984 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 5 years, 7 months, and 18 days of creditable active service with 1259 days of lost time.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
 
13.  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.  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.

14.  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.

15.  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.

16.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military…service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment."

DISCUSSION AND CONCLUSIONS:

1.  He contends he was not given due process.  However, on 3 February 1984, he consulted with counsel prior to making his voluntary request for discharge.

2.  He contends he is seeking VA medical care for injuries he incurred during both periods of service.  His temporary physical profiles for various defects during his service were noted.  However, he met all medical qualifications for oversea movement on 19 May 1980 and his physical profile was "111111."  In addition, a discharge is not upgraded for the purpose of obtaining VA benefits.

3.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  His prior honorable discharge was carefully considered.  However, his record of service during his last enlistment included one NJP and 1259 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

6.  Since the applicant was honorably discharged on 13 September 1978 for the purpose of immediate reenlistment, it appears the VA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' benefits does not fall within the purview of the Army, however.  He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

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)                                         AR20110001390



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001390



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1