BOARD DATE: 11 August 2011
DOCKET NUMBER: AR20110002783
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 under other than honorable conditions discharge be upgraded to an honorable discharge.
2. The applicant states:
* he was drafted into the Army with abnormal feet which caused him mental distress and depression during his first seven months of duty
* he wants his records cleared for peace of mind
* he would like to get veterans health care
3. The applicant provides a self-authored statement.
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. Records show that 25 February 1970, prior to the applicant's entry into the Army, his family physician provided a letter to the Selective Service Board indicating the applicant had congenital flat feet with severe pronation, splay foot, positive Helbing's sign, and that permanent correction for his type of foot condition was not possible. Further, his condition could be alleviated with appliances and orthopedic shoes.
3. The applicant was inducted into the Army on 22 May 1970. He was awarded military occupational specialty 64A (Light Vehicle Driver). The highest rank/ grade he attained while serving on active duty was private/E-2.
4. Records show that although the applicant had congenital flat feet, he was found fit for duty without limitations on 9 July 1970. Medical personnel resized his feet and issued the proper shoe size.
5. On 19 October 1970, the applicant went absent without leave (AWOL) prior to completing advanced individual training. On 17 November 1970, he was declared a deserter and dropped from the rolls. Records show he was AWOL for the period 19 October 1970 to 9 May 1971 and 26 May 1971 to 15 June 1971. Although not available for review with this packet, it is presumed that charges were preferred against the applicant for being AWOL for this period.
6. On 16 June 1971, the applicant consulted counsel and submitted a voluntary request for discharge in lieu of trial by court-martial for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. The applicant was advised of the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under conditions other than honorable discharge, and of the procedures and rights that were available to him.
7. In his request for discharge, the applicant indicated that he understood that by requesting discharge, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.
8. Additionally, in his request for discharge, the applicant stated he was mentally unbalanced, nervous all the time, and unable to adjust to the Army's way of life in any shape or form. Further, if he had to stay in the Army, he would only get into a lot of trouble and go AWOL.
9. On 13 July 1971, the discharge authority approved the applicant's request and directed discharge with an undesirable discharge. The applicant was discharged on 26 July 1971 with an under conditions other than honorable discharge under the provisions of Army Regulation 635-200, chapter 10.
10. The applicant's DD Form 214 reflects he completed 6 months and 24 days of creditable active military service and had 224 days of lost time due to being AWOL.
11. On 13 December 1976, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
12. The applicant provided a self-authored statement indicating "drug suppression" listed on his DD Form 214 has caused him problems with background checks and employment opportunities. He loves his country and regrets being a bad Soldier. Emotional stress and anxiety scared him off. He has been a hard worker since discharge and has had no further criminal record.
13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, which a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. At the time, an undesirable discharge was 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions that his discharge should be upgraded to an honorable discharge because he had a medical condition related to abnormal feet problems and depression was carefully considered and found to be without merit.
2. Records show the applicant was inducted with congenital flat feet and that his condition could be alleviated with appliances and orthopedic shoes. Medical personnel resized his feet and issued him the proper shoe size. He was found fit for duty at the time of his induction and upon his separation. The applicant has failed to provide evidence which shows his indiscipline was caused by his feet problems.
3. The applicant was discharged under the provisions of chap 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial. Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service.
4. Based on his record of indiscipline, which includes 224 days lost due to being AWOL, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either a general or honorable discharge.
5. The ABCMR does not grant requests for upgrade of discharge solely for the purpose of making the applicant eligible for veterans benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for benefits should be addressed to the VA.
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) AR20110002783
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ABCMR Record of Proceedings (cont) AR20110002783
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