IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110011629 


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 (UOTHC) discharge be changed to a medical discharge.

2.  The applicant states, in effect, he was offered a medical discharge and he did not take it but now he believes he should have.  He further states when he checked into his benefits he was told he needed his discharge upgraded.  Therefore, he is requesting a medical discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and four pages of his Standard Form (SF) 600 (Chronological Record of Medical Care).

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.  His record shows he enlisted in the Regular Army on 27 August 1980.  Upon completion of initial entry training, he was awarded military occupational specialty 19E (Armor Crewman).  The highest rank/grade he attained while serving on active duty was private (PVT)/E-1.  

3.  On 4 August 1981, charges were preferred against the applicant for being absent from his organization from 23 February to 28 July 1981.

4.  On 4 August 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his e request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He submitted a statement wherein he stated he believed the discharge was in his and the Army's best interest.

6.  On 7 October 1981, the separation authority approved the applicant's request for discharge and directed that he receive a UOTHC discharge.  On 23 November 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 9 months and 
22 days of creditable active service with 155 days of lost time.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  The applicant provides documentation which shows he was treated for back pain in October and November 1980.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after the charges have been preferred.  At the time, a UOTHC discharge was normally considered appropriate.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because 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.

11.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the PDES in four ways:

	a.  an MEB.  A Soldier is referred to an MEB when a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service.  The medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a physical evaluation board (PEB) to determine physical fitness under the policies and procedures of Army Regulation 635-40;

	b.  an MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles.  The MMRB determines whether a Soldier can physically perform in a worldwide field environment in their primary military occupational specialty.  Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct;
	c.  a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform his MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in a MEB, and the MEB determines the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and

	d.  a Headquarters Department of the Army action.  The Commander, U.S. Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  The U.S. Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB's recommendation to reclassify a Soldier into a different MOS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should changed to show he has a medical discharge was carefully considered and determined to be without merit.

2.  There is no evidence in the available records and the applicant failed to provide any evidence which shows he had an unfitting medical condition or should have been referred to the Army PDES for consideration by either an MEB or a PEB prior to his discharge.

3.  Although he provides copies of treatment records for a back injury, it does not, in and of itself, establish physical unfitness for Department of the Army purposes.
In addition, there is no evidence in the applicant's record nor did the applicant provide evidence to support his contention that he was offered a medical discharge.  

4.  The applicant's record shows he was charged with the commission of an offense 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.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  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.  Therefore, he is not entitled to relief in this case.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other 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)                                         AR20110011629



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ABCMR Record of Proceedings (cont)                                         AR20110011629



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