IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016962 


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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* he suffered from pneumonia shortly after joining the Army
* due to the lack of proper medical care for the pneumonia he subsequently suffered from a spontaneous pneumothorax that plagued him until his discharge
* he was then treated with disdain until he received his discharge in September 1973  

3.  The applicant provides:

* service medical records
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 20 November 1972 for a period of 3 years.  He completed basic combat training.

3.  He provided service medical records which show he was treated for pneumonia and spontaneous pneumothorax from December 1972 to March 1973. 

4.  Records show he went absent without leave (AWOL) on 1 April 1973 and returned to military control on 24 April 1973.  He went AWOL again on 9 July 1973 and returned to military control on 10 August 1973. 

5.  On 30 August 1973, he underwent a separation physical examination and was found qualified for separation.  Item 28 (Lungs and Chest) of his Standard Form 88 (Report of Medical Examination), dated 30 August 1973, shows he was rated normal. 

6.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his discharge orders and DD Form 214 show he was discharged for the good of the service in lieu of trial by court-martial on 
21 September 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 8 months and 
7 days of creditable active service with 55 days of lost time.

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

8.  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, the 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 to an individual who was discharged for the good of the service.

9.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he suffered from pneumonia shortly after joining the Army and due to improper medical care he suffered from a spontaneous pneumothorax that plagued him until his discharge.

2.  Medical evidence of record shows he was treated for pneumonia and spontaneous pneumothorax during the period December 1972 to March 1973.  However, medical evidence also shows he underwent a separation physical examination on 30 August 1973 and was found qualified for separation and his lungs and chest were rated normal. 

3.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge during his enlistment in the RA.  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 would have 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.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service during his enlistment in the RA.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110016962





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ABCMR Record of Proceedings (cont)                                         AR20110016962



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