IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006281 


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 that his undesirable discharge (UD) be changed to a medical discharge.

2.  He states he was advised that after 2 years of his release from the Army his discharge could be corrected with medical documentation.  

3.  He provides a letter from his medical doctor.

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 military records show he enlisted in the Regular Army in pay grade E-1 on 4 August 1972.  He did not complete advanced individual training.  .  
3.  He was reported being absent without leave (AWOL) on 2 October 1972 and dropped from the rolls on 31 October 1972.  He was returned to military control on 28 March 1973.

4.  On 16 April 1973, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army, Personnel Control Facility, Fort Gordon, GA.  He was charged with one specification of being AWOL from 2 October 1972 through      28 March 1973.

5.  On 5 April 1973, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.  

6.  In his statement, he stated that he didn’t like the Army because he did not understand English and his mother and family needed him at home.  The discharge was his idea and he did not regret leaving the Army although he will lose all of his benefits.  He wants to leave to assist his father in his business because his father can barely manage his business alone.  He believed that it was best he returned to Puerto Rico.

7.  On 10 April 1973, he underwent a separation physical examination wherein he stated his health was good and the examining physician noted no residual disability.  He was found qualified for separation.

8.  On 18 April 1973, the Commander, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, GA, concurred with the unit commander’s recommendation for approval of the applicant's request and he recommended the issuance of a UD Certificate.  

9.  On 19 April 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

10.  He was discharged in pay grade E-1 on 8 May 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  He was credited with completing 3 months and 10 days of active service with 177 days of time lost.
11.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

12.  He provides a letter from his medical doctor dated 5 October 2010.  The individual stated that he has known the applicant for many years and the applicant has advanced noninsulin-dependent diabetes mellitus with likely involvement of the Humalog treatment additionally to his medication.  The applicant also has severe osteoarthritis, degenerative joint disorder of the knees as well as the lumbosacral spine, gastroesophageal reflux disease, as well as anxiety and distress related to his chronic condition.  Because of the joint problem and diabetes the applicant cannot work.  The applicant also has problems with vision and is pending an ophthalmology consult and is on multiple medications.  

13.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that 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 at any time after the charges have been preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  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.  

16.  Army Regulation 635-200, paragraph 5-9, provides for the separation of enlisted Soldiers who did not meet procurement medical fitness standards and processing under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  

17.  Army Regulation 635-40, then in effect, provided for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 4 August 1972, he did not complete training, and he was never promoted beyond pay grade E-1.  On 16 April 1973, he was charged with being AWOL from            2 October 1972 through 28 March 1973.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

2.  At the time, he also acknowledged that he could be discharged under other than honorable condition and furnished a UD Certificate.  He also stated that he didn’t like the Army because he did not understand English and his mother and family needed him at home.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process.  

4.  There is also an absence of evidence to support his contentions for entitlement to a medical discharge.  There is no evidence he was found to be unfit by reason of physical disability during his period of active duty.  He acknowledged the reason for his separation.  He did not mention any medical conditions he was experiencing and he was medically cleared for separation.  

5.  He has submitted neither probative evidence nor a convincing argument to show he had any medical conditions that would have amounted to a disability separation under the provisions of Army Regulation 635-40.  Therefore, he is not entitled to a medical discharge.

6.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to a medical discharge. 

7.  In view of the foregoing, there is no basis for granting his request.


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)                                         AR20110006281





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ABCMR Record of Proceedings (cont)                                         AR20110006281



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