IN THE CASE OF:	  

		BOARD DATE:  8 May 2012

		DOCKET NUMBER:  AR20110023198 


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 a disability discharge.

2.  The applicant states he has a service-connected injury to his right knee and this injury has disabled him and left him depressed and lost for 33 years.  He was injured badly and had an operation on his knee.

3.  The applicant provides no documentary evidence in support of his application.

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 on 23 October 1980.  He was trained in and awarded in military occupational specialty 62F (Lift and Load Equipment Operator).
3.  The applicant's record shows he was never advanced above the rank/grade of private (PV1)/E-1.  It also reveals on 2 February 1981, he departed absent without leave (AWOL) from his unit at Fort Leonard Wood, MO.  He remained absent for 139 days until returning to military control at Fort Sill, OK on 21 May 1981.

4.  His record contains a DA Form 2A (Personnel Qualification Record - Part I) that was prepared on 13 February 1981.  This document shows he had a military physical profile (PULHES) of 111121 and a Physical Category of B.  Numerical designator "1" indicates a high level of medical fitness.  The "E" position is for vision – eyes.  The "2" under "E" indicates he had correctable distant visual acuity.  His record is void of medical treatment records or other documents that indicate he was suffering from a disabling physical or mental condition at the time he departed AWOL.

5.  His record also contains a VA Form 70-3101-3 (Request for Information), dated 3 September 1986, that shows he requested his military medical records be sent to the New Orleans Veterans Administration (VA), and that this action was completed on 23 September 1986.

6.  On 28 May 1981, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 2 February through 21 May 1981.

7.  On 29 May 1981, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.
9.  In conjunction with his discharge processing, the applicant completed a Statement of Option indicating he did not desire a separation medical examination.  

10.  On 17 June 1981, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 10 and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 29 June 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 4 months and
18 days of creditable active service with 139 days of time lost due to AWOL.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his under other than honorable conditions discharge to a medical discharge because he still suffers the effect of a knee injury he received on active duty has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  
It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record confirms he accrued 139 days of time lost due to being AWOL and that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge.

4.  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 13 February 1981, and the medical examination option statement in which the applicant declined taking a separation medical examination.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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.



      _______________________
               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)                                         AR20110023198



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ABCMR Record of Proceedings (cont)                                         AR20110023198



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