IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120002324 


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 be upgraded to an honorable discharge or a medical discharge.

2.  The applicant states shortly after arriving at Fort Bragg, NC, he sustained a right knee injury during a training exercise.  He needed extensive surgery and a staph infection developed immediately after his surgery.  He had to remain in Womack Army Community Hospital, Fort Bragg, NC, for an extended period of time.  He was subjected to a very painful debriding and therapy process on a daily basis and he was administered the very powerful and addictive medications of Demerol and morphine.  He was administered these medications multiple times daily and without him or anyone else realizing it at the time, an addiction had developed.  Upon leaving the hospital he was given prescriptions and was able to obtain other medications through other employees at the hospital which was not proper, but by this time he had a growing dependency and did not know it.  When he realized he was in need of professional help he went to his chain of command and pleaded for help or to be sent to a rehabilitation facility.  He was told no and he would be getting an Article 15 and a dishonorable discharge.  He was young and frightened and he felt he had no one to turn to.  His doctor would not even help him; he had no other choice so he ran away out of fear.

3.  The applicant provides:

* three Standard Forms (SF) 516 (Operation Report), dated 4, 6, 11, and 27 August 1981
* SF 515 (Tissue Examination), dated 6 August 1981
* DA Form 3647 (Inpatient Treatment Record cover Sheet), dated 20 August 1981
* SF 502 (Narrative Summary), dated 26 October 1981

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.  He enlisted in the Regular Army on 14 July 1980 for a period of 4 years.

3.  He submitted three operative reports from Womack Army Community Hospital, Fort Bragg, NC.

	a.  On 3 August 1981, an arthroscopy was performed on his right knee and a lateral meniscus of his right knee was repaired.

	b.  On 10 August 1981, an irrigation and drainage of his right knee was performed.

	c.  On 25 August 1981, debridement of his open wounds and manipulation of his right knee was performed.

4.  An SF 502, dated 26 October 1981, is a hospital summary showing he was admitted to Womack Army Community Hospital on 2 August 1981 for right knee pain and swelling following a twisting injury on the day of admission.  He was discharged on 20 October 1981.

	a.  He was taken to surgery the day after admission.  An arthroscopy was performed where a portion of his anterior cruciate ligament was debrided and the lateral meniscus tear was repaired.

	b.  Postoperatively, he had a wound infection with staph aureus.  He underwent an incision and drainage and opening up of the surgical incisions with subsequent antibiotic treatment.

	c.  He responded well to the antibiotic treatment, his wound was allowed to heal by secondary intention, and he was started on range of motion exercises.  He was placed on convalescent leave for a period of 3 weeks.

	d.  Upon his return from convalescent leave he had 100 degrees of knee flex, full knee extension, and significant quadriceps atrophy.

	e.  The disposition was for him to return to duty within the limits of his physical profile (not available for review) and return to the Orthopedic Outpatient Clinic in 6 weeks.  There is no mention of his being prescribed medication upon discharge from the hospital.

5.  A DA Form 3349 (Physical Profile Board Proceedings), dated 16 February 1982, placed him on a temporary physical profile for lower extremities as a result of bone knee surgery.  The temporary physical profile expired on 16 April 1982.

6.  His DA Form 2-1 (Personnel Qualification Record) shows he had two periods of being absent without leave (AWOL):

* 9 December 1982
* 10 January to 12 January 1983

7.  He was AWOL again on 17 January 1983.  He surrendered on 26 May 1983. On a Personnel Control Facility Interview Sheet, dated 26 May 1983, at Fort Dix, NJ, he stated he was AWOL from Fort Bragg, NC, because of a drug and alcohol problem that he felt he was not being helped with.  A comment on the form from the interviewer indicated the applicant did not want to be referred to the Drug and Alcohol Program because he was being helped by a private doctor.

8.  On 27 May 1983, court-martial charges were preferred against him for being AWOL from on or about 17 January until on or about 26 May 1983.

9.  On 27 May 1983, he voluntarily requested discharge for the good of the service.  He acknowledged he understood the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

10.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Veterans Administration (VA) benefits

11.  On 10 June 1983, the appropriate authority approved his request for discharge for the good of the service.  He directed the applicant be reduced to private/pay grade E-1 and be furnished an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 6 July 1983, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 7 months, and 10 days of net active service that was characterized as under other than honorable conditions.  He had 132 days of lost time.

13.  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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibility, and procedures that applied in determining whether a member was unfit because of physical disability to perform the duties of his office, grade, rank, or rating.  The medical treatment facility commander with the primary care responsibility evaluated those referred to him and would, if it appeared as though the member was not medically qualified to perform duty or failed to meet retention criteria, refer the member to a medical evaluation board (MEB).

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  There is no evidence in his military personnel records that he was not medically qualified to perform his duties or that he failed to meet medical retention criteria because of an injury.  Therefore, there was no reason to refer him to an MEB or be referred to the Physical Disability Evaluation System.

3.  He contends he was administered Demerol and morphine while in the hospital and provided prescriptions upon his release.  The operative reports do not show, and would not necessarily show, he was administered these medications.  The hospital summary disposition does not show he was placed on any prescription medication upon his release from the hospital.  There is no evidence showing what medications he was administered while hospitalized.

4.  His periods of AWOL didn't begin until over a year after he was released from the hospital.  He contends he sought assistance from his chain of command for an addiction to his medications.  However, he provides no evidence indicating what assistance he sought and when he sought it.  At his interview at Fort Dix, he specifically indicated he did not want to be referred to a Drug and Alcohol Program.

5.  He voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he could receive a discharge under other than honorable conditions and that he may be ineligible for many or all Army benefits to include benefits administered by the VA.

6.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

8.  He failed to complete the term of service he had contracted for and he had 132 days of time lost.  Therefore, his period of service is unsatisfactory.

9.  In view of the above, there is an insufficient basis to upgrade his properly issued discharge to honorable or general under honorable conditions.

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 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)                                         AR20120002324



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ABCMR Record of Proceedings (cont)                                         AR20120002324



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