IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110008297


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 the character of his discharge be upgraded to honorable (HD) or general (GD).

2.  The applicant states:

* he enlisted for training opportunities as a track vehicle mechanic and did well during initial entry training (IET)
* he was assigned to Fort Riley and moved his wife and child to Junction City, KS
* he went on maneuvers to Germany for 60 days and his wife left him and moved in with another Soldier
* he became distraught, his performance suffered, and he received nonjudicial punishments (NJPs)
* he was ordered back to the barracks where he accidently fell out of a 3rd story window, suffering serious injuries
* he was evacuated from Fort Riley to Fitzsimons Army Hospital, Denver, CO and he thought he would be medically discharged because he was issued a Veterans Administration (VA) purple card
* he was surprised when he was reassigned to Fort Carson, CO to work in a motor pool
* he was still in pain and was frustrated with his assignment in the motor pool, but his chain of command would not reassign him to less strenuous work


* he went absent without leave (AWOL) for a few weeks and received NJP when he returned
* he was transferred to a holding unit (Personnel Control Facility) pending discharge under other than honorable conditions (UOTHC)

3.  The applicant adds:

* he immediately went to the VA hospital in Denver for follow-up care for his injuries from his barracks window fall
* he showed his purple VA card and received a cane and a right shoe orthotic for his shortened right leg
* 6 months later, he went back to the VA hospital, but they wouldn't treat him
* fortunately, he found employment with medical benefits, but during 1987-88 he was laid off and he went to the VA hospital for treatment of a broken left heel
* he presented his purple VA card and received treatment, but when he went back for follow-up, they confiscated his card
* now he is unemployed and without medical coverage since 2003; he needs his discharge upgraded to receive VA care

4.  The applicant provides:

* an 8-page statement
* documents pertaining to denial of VA benefits

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 U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 7 December 1976.  On 12 December 1976, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 13 December 1976.

3.  The applicant completed IET at Fort Knox, KY and was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic).

4.  The applicant's first permanent duty assignment was Fort Riley.  The record shows the following incidents of NJP while at Fort Riley:

	a.  without authority, failing to go at the time prescribed to his appointed place of duty on 9 January 1978, to wit:  Morning Formation.  The applicant was punished by reduction from private (PVT/E-2) to private (PVT/E-1), forfeiture of $50 pay per month for 1 month (suspended until 11 March 1978), and 7 days of extra duty;

	b.  vacation of the above suspended punishments on 23 January 1978; and

	c.  without authority, absenting himself from his place of duty from 19 January 1978 until 1400 hours, 23 January 1978.  The applicant was punished by forfeiture of $50 pay per month for 1 month and extra duties for 14 days.

5.  The applicant's medical records are not available for review; however, item 35 (Record of Assignments) on his DA Form 2-1 (Personnel Qualification Record) shows he was a patient at Irwin Army Hospital, Fort Riley, on 25 February 1978, then at Fitzsimons Army Medical Center from 6 April 1978 to 26 July 1978.

6.  Following his discharge from Fitzsimons Army Medical Center, the applicant was reassigned to Fort Carson's 4th Military Intelligence Company as a wheel vehicle mechanic.

7.  The applicant's records from Fort Carson contain two records of NJP under Article 15, Uniform Code of Military Justice, for:

	a.  without authority, failing to go at the time prescribed to his appointed place of duty on 24 October 1978, to wit:  Company Motor Pool.  His punishment was not imposed because he went AWOL before the NJP could be completed; and



	b.  being AWOL from 24 October 1978 to 8 November 1978.  His punishment was forfeiture of $97 pay per month for 1 month and restriction and extra duty for 10 days.

8.  The applicant's records do not contain a separation packet; however, his DD Form 214 shows he was discharged UOTHC on 29 December 1978 under the provisions of paragraph 14-33b(1), Army Regulation 635-200.  It also shows 33 days of lost time due to three periods of AWOL.

9.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  

11.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a GD 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 HD.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether 
a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of 


physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  It 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.  He indicates he was surprised when he was not medically separated.

2.  The applicant displayed unacceptable conduct during his active duty service.  It appears his misconduct started before his accident.  He received NJP on three occasions and had a suspension of punishment vacated, and he was AWOL on three occasions.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for it were appropriate considering all the facts of the case.

4.  The applicant was injured in a fall and he was given medical attention.  After some 5 months in the hospital competent medical authority declared him fit for duty and he was assigned to perform the duties of his MOS.

5.  The Army does not upgrade discharges solely for the purpose of qualifying for VA benefits.

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)                                         AR20110008297





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ABCMR Record of Proceedings (cont)                                         AR20110008297



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