IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20120002216 


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 the reason for his discharge as due to physical disability.

2.  The applicant states he should have been medically discharged because he was medically disqualified to serve after he received his operation(s).

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Forms 4700 (Pre-Admission Patient Instructions),dated 6 August 1998 and 15 January 1999

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.  On 2 July 1997, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 75B1O (Personnel Administration Specialist).  He was subsequently assigned to Fort Hood, TX, with duty in this MOS.

3.  The DA Forms 4700, as provided by the applicant, indicates he was scheduled for surgery on 7 August 1998 and again on 19 January 1999.  There is no evidence showing these surgeries were performed, the outcome of these surgeries, his prognosis for recovery, and or his subsequent ability to serve in the military.

4.  A DD Form 616 (Report of Return of Absentee) shows the applicant went absent without leave (AWOL) on 3 June 1999 and he surrendered to military authorities at Fort Sill, OK on 20 July 1999.

5.  On 26 July 1999, charges were preferred against the applicant under the provisions of the Uniform Code of Military Justice (UCMJ) for violation of Article 86, for being AWOL, from on or about 3 June to 20 July 1999.

6.  On 29 July 1999, 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 UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

7.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 17 November 1999, the separation authority approved the applicant’s request for discharge and directed the issuance of a UOTHC discharge.  The applicant was discharged in lieu of trial by court-martial on 6 December 1999.  He had completed 2 years, 3 months, and 18 days of creditable active military service and he had accrued 47 days of time lost due to being AWOL.

9.  The applicant's service medical records were not available for review.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of an 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

13.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason for his discharge should be due to physical disability because his surgeries made him medically unqualified to serve.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant's contention that he was not medically qualified for service after his operations is not supported by any evidence of record.  The documents he provides only show that he was scheduled for surgery.  There is no available evidence showing that he was medically unfit for duty.

5.  In view of the above, the applicant's 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)                                         AR20120002216



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ABCMR Record of Proceedings (cont)                                         AR20120002216



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