BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110022196 


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 discharge under other than honorable conditions (UOTHC) be changed to a medical discharge and/or upgraded to an honorable discharge (HD).

2.  The applicant states he was injured on active duty, but he has been denied any type of benefits even though he still suffers from the injury because of the type of discharge he received.  The applicant states he applied for benefits in 1994 after constant back pain and blood found in his urine.  He was told he was ineligible for benefits because of the type of discharge he received.  He did not press the issue at the time but is now applying because he was recently told about the Board.

3.  The applicant provides the following documents in support of his application:

* DA Form 285 (United States Army Accident Investigation Report), dated 30 October 1988
* Standard Form 600 (Chronological Record of Medical Care), dated 19 December 1988
* DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 21 June 1985 and 13 September 1989
* Valley Medical Center Urine Dip, dated 16 July 2010



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's record shows he enlisted in the Regular Army on 2 February 1988 after serving in the U.S. Army Reserve (USAR) which included a period of active duty for training in 1985.  He held and served in military occupational specialty 13B (Cannon Crewmember).  His record shows he was first advanced to the rank of private/E-2 on 10 September 1985 while serving in the USAR and he retained that rank when he enlisted in the Regular Army on 2 February 1988.  It further shows this is the highest rank he attained and held while serving on active duty and he was reduced to the rank of private/E-1 for cause on 29 June 1989.  His record documents no acts of valor or significant achievement.

3.  The record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 June 1988 for making a false official statement.  It also includes his accrual of 91 days of lost time due to being absent without leave (AWOL) from 14 March 1989 through 12 June 1989.

4.  The applicant provides a DA Form 285 that shows he injured his back while dismounting a truck on 28 October 1988.  It further shows he was hospitalized and diagnosed with a sprained spine.  Treatment included bed rest for 72 hours.  He also provides a Standard Form 600 that shows he was treated for a mild renal contusion on 19 December 1988 and was prescribed medication and returned to duty.

5.  The record contains a DA Form 2A (Personnel Qualification Record – Part I) prepared on 21 June 1989.  This record contains the PULHES code of "111111" and a physical category code of "A."  His record is void of medical treatment records or other medical documents indicating he was suffering from a disabling physical condition at the time of his discharge.

6.  The applicant's record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does include a memorandum, undated, subject:  Admission of AWOL for Administrative Purposes, signed by the applicant and legal counsel.  In this document, the applicant declared he had been advised by his defense counsel that at the present time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial and this was through no fault of the government, but merely due to the time required to request and mail the documents and records.

7.  In his admission of AWOL, the applicant was also advised by his counsel that he could not be fully advised by him without the records.  The applicant acknowledged his understanding of the limitations on his counsel but nevertheless, knowing all this to be true, he waived all defense that could have become known had his defense counsel been able to review his records.  Subsequent to receiving this legal counsel, the applicant voluntarily declared he was AWOL from 14 March through 13 June 1989 and that he was making this admission for administrative purposes only so he could be processed out of the Army.  He realized in doing so he could receive a UOTHC discharge.  He further acknowledged that his legal counsel had fully informed him of the legal and social ramifications of that type of discharge and what it would mean to him in the future.

8.  The record also contains a properly-constituted DD Form 214 that shows the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  It further shows he completed 1 year, 4 months, and 13 days of creditable active military service during the period and he accrued 91 days of lost time due to AWOL.

9.  Army Regulation 635-200 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an HD or a general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate.  



10.  Paragraph 3-7a of Army Regulation 635-200 provides that 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides that 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.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

12.  Army Regulation 635-40 states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or that other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his discharge changed to medical or upgraded to an HD because he still suffers the effects of a back injury he received on active duty and needs benefits has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The available evidence does not include a complete separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason for and characterization of the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant's DD Form 214 confirms he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In 


connection with this type of discharge, the applicant would have been charged with the commission of an offense punishable by a punitive discharge under the 
UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record confirms he accrued 91 days of lost time due to AWOL and had other disciplinary problems as indicated by his acceptance of NJP.  It further shows he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge.

5.  There is no evidence of record showing the applicant suffered from a disabling physical condition that would have been a primary factor in the misconduct that led to his discharge or that would have supported his separation processing through medical channels at the time of his discharge.  This is evidenced by the PULHES and physical category listed on the DA Form 2A prepared on 26 June 1989.

6.  Based on his misconduct, the UOTHC discharge he received was normal and appropriate under the regulatory guidance in effect at the time and there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

7.  The applicant is advised that the Board does not upgrade discharges solely on the need for 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)                                         AR20110022196



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ABCMR Record of Proceedings (cont)                                         AR20110022196



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