BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110008172 


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 upgrade of his undesirable discharge to an honorable discharge or changed to a medical discharge.

2.  The applicant states that shortly after his transfer to Hunter Army Air Field, GA, he had problems with his right leg and was in the hospital for about 2 weeks.

3.  The applicant provides:

* a Duke University Medical Center - Preoperative Ambulatory Surgery Assessment
* his DD Form 214 (Report of Separation from Active Duty)

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 (RA) on 29 January 1973.  He completed training and he was awarded military occupational specialty 13B (Field Artillery Crewman).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  12 March 1974 for three specifications of disobeying a lawful general regulation on 28 January 1974;

	b.  8 March 1976 for disobeying a lawful order from his superior noncommissioned officer (NCO) on 23 February 1976; and

	c.  25 May 1976 for being absent without leave (AWOL) during the period 
20 - 30 April 1976 and 3 - 18 May 1976.

4.  Records show he was again in an AWOL status during the period 14 June - 12 July 1976.

5.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 25 May 1976, indicates that he had been on sick call 14 times since 1 January 1976.  His immediate commander stated the applicant did not have a medical condition that could account for the frequent visits to the clinic nor were his alleged ailments supported by medical examination or treatment.  His medical condition had been thoroughly discussed with the battalion's physician assistant.

6.  On 26 July 1976, court-martial charges were preferred against the applicant for his AWOL offense during the period 14 June - 12 July 1976.

7.  He again departed AWOL on 2 August 1976 and he returned to military control on 7 September 1976.

8.  His discharge packet is not available for review; however, an endorsement, subject:  Court-Martial Charges, dated 8 September 1976, shows the court-martial charges against the applicant were withdrawn effective the same date.

9.  He was placed on excess leave effective 14 September 1976 pending the disposition of his voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.
10.  The DD Form 214 issued at the time of his discharge shows he was discharged on 28 October 1976 under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  His DD Form 214 also shows he was assigned a separation program designator (SPD) code of JFS (for the good of the service - in lieu of trial by court-martial).  He completed 3 years, 6 months, and 2 days of creditable active service with 133 days of time.

11.  There is no evidence that shows he was suffering from an unfitting medical condition prior to his discharge.

12.  There is no evidence indicating that he applied to the Army Discharge Review Board for an upgrade of his discharge with its 15-year statute of limitarions.

13.  He provided an undated preoperative ambulatory surgery assessment from a civilian institution that indicates he was to undergo lower back surgery.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

15.  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.

16.  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.

17.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded or changed to a medical discharge has been carefully considered.

2.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

3.  His record of indiscipline includes NJP on three occasions, court-martial charges for AWOL, and 133 days of time lost.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of undistinguished service did not then and does not now support the issuance of an honorable or a general discharge.  Therefore, there is no basis for granting this portion of his request.

4.  His records do not show he was suffering from any unfitting condition that would have required him to be processed for discharge through medical channels.  Therefore, there is no basis for granting this portion of 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)                                         AR20110008172



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008172



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1