IN THE CASE OF:	  

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110008342 


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, in effect, correction of his records to show he was honorably discharged due to medical reasons.

2.  The applicant states:

* the time he spent in the hospital was unaccounted for
* someone listed him as being absent without leave (AWOL) for 194 days
* he was not AWOL, he was in the hospital with a head injury
* he should have an honorable discharged due to medical reasons

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

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 Army on 16 March 1972.

3.  The applicant accepted nonjudicial punishment (NJP) on 11 May 1972 for being AWOL from 24 April until 7 May 1972.

4.  On 2 January 1973, the applicant was notified that charges were pending against him for being AWOL from 24 April until 7 May 1972, 12 May until 27 June 1972, and 14 August until 26 December 1972.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

5.  The appropriate authority approved the request for discharge and directed the issuance of an Undesirable Discharge Certificate.

6.  On 30 January 1973, the applicant 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.  He had completed 4 months and 1 day of total active service and he received an Undesirable Discharge Certificate.

7.  A review of the available record does not show the applicant was hospitalized with a head injury while he was in the Army.

8.  Further review of the applicant's records fails to show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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.
   
   c.  Paragraph 3-7b states 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.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

11.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  There is no evidence in the available record, nor has the applicant submitted any evidence showing he was hospitalized with a head injury during the times he was charged with being AWOL.

3.  There is also no evidence showing he had a medical unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  His record shows he was AWOL on three separate occasions.  Charges were pending against him and he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court.

5.  The applicant has not shown error or injustice in the reason for his discharge or the type of discharge he received.


6.  In view of the foregoing, his request should be denied.

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)                                         AR20110008342





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ABCMR Record of Proceedings (cont)                                         AR20110008342



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