IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120005132 


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 change of his under other than honorable conditions discharge to a medical discharge.

2.  The applicant states:

	a.  He believes he should have received a medical discharge on 8 June 1976. He was misdiagnosed.  In effect, in late 2010 a Member of Congress was able to obtain copies of his record.  He had been told time after time that his record was destroyed in a fire.  He received the clinical narrative summary, dated 10 June 1976, that shows he suffered an upper respiratory infection resulting in his hospitalization for pneumonia.

	b.  Upon his discharge from the hospital on 8 June 1976, he was not the same Soldier he was prior to his hospital stay.  He could not function and he was mentally and physically unable to perform his duties.  He was lost and confused. He never once received help from medical personnel or his command.  He knew he was not the same person.  Once he received this medical report in early 2011 the pieces started to fit together as he had a sustained fever of 104 degrees for
2 to 3 days.  He beat the odds of surviving spinal meningitis that causes brain damage, not to mention what the damage the sustained fever can do to the brain, lung, heart, and kidney.

	c.  He would like medical consent to be tested at the preferred San Diego Department of Veterans Affairs (VA) hospital or Walter Reed Army Medical 

Center, Washington, DC (now the Walter Reed National Military Medical Center in Bethesda, MD).  He would allow for a magnetic resonance imaging (MRI) of the brain, a test on kidney and lung functions, and on anything that is linked to high fever, spinal meningitis, pneumonia, etc.

3.  The applicant provides:

* DA Form 3647-1 (Clinical Record Cover Sheet)
* Standard Form (SF) 502 (Clinical Record – Narrative Summary)
* SF 93 (Report of Medical History)
* DD Form 214 (Report of Separation from Active Duty)
* Radiological reports/interpretations for images of his chest, lower back, right shoulder, and right knee
* letter from a Member of Congress
* two letters from the VA denying his claim for service-connected compensation

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 in pay grade E-1 on 3 February 1976 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11C (indirect fire infantryman).  

3.  On 1 May 1976, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from sentry duty from 25 to 26 April 1976.

4.  He provides copies of an SF 3647-1 and SF 502 that show he was hospitalized on 3 June 1976 and diagnosed with pneumococcal pneumonia.  He received treatment and he was discharged on 8 June 1976 with 2 weeks of convalescent leave with a return visit to the clinic.
5.  On 4 February 1977, he accepted NJP under Article 15, UCMJ, for assaulting another Soldier on 19 January 1977.

6.  He was reported absent without leave (AWOL) on 14 March 1977 and he returned to military control on 14 May 1977.  On 20 May 1977, court-martial charges were preferred against him for the AWOL offense.

7.  On 23 May 1977, after consulting with counsel, the applicant requested discharged 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.  He acknowledged he understood he could be discharged under other than honorable conditions and that he might be ineligible for many or all benefits administered by the VA.  He elected to submit a statement in his own behalf.

8.  In his statement, dated 23 May 1977, the applicant stated he desired to be discharged for several reasons:

	a.  difficulty with adjusting;

	b.  problems with fellow Soldiers;

	c.  trouble at home;

	d.  for the benefit of the service; and

	e.  the fact that he was no longer productive.

He also stated he could not honestly say what he would do if his discharge was disapproved.

9.  On 31 May 1977, the applicant company commander recommended approval of the applicant's discharge in accordance with Army Regulation 635-200, chapter 10.  The company commander stated that based on the applicant's previous record, punishment could expect to have minimal rehabilitative effect.  He further stated there does not appear to be any reasonable ground to believe the individual is or was at the time of his misconduct mentally defective, deranged, or abnormal.

10.  On 9 June 1977, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the rank/grade of private (PV1)/E-1.
11.  On 21 June 1977, he was discharged accordingly.  He completed 1 year,
1 month, and 22 days of total active service with 86 days of time lost.

12.  On 6 May 2011 and 12 January 2012, the VA advised him that the character of his discharge from military service makes him ineligible for VA benefits.  He was also advised that he was only eligible for VA medical care for a disability that was incurred or aggravated during his military service.

13.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  However, on 27 January 2005, he applied to the ABCMR for an upgrade of his under other than honorable conditions discharge to an honorable discharge or at least a general discharge.  On 29 September 2005, his request for discharge upgrade was denied.

14.  He provides copies of medical documents between 2007 and 2011 pertaining to radiology imaging of his chest, lower back, right shoulder, and right knee.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 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.

	b.  Paragraph 3-7a stated an honorable discharge was separation with honor. 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 be inappropriate.

   c.  Paragraph 3-7b stated 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.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the physical disability evaluation system (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.

	a.  It provides for medical evaluation boards (MEB's), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  Soldiers pending a discharge with an under other than honorable conditions discharge are ineligible for processing in the PDES.

	b.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	c.  This regulation further states the mere presence of 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 office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was hospitalized for pneumonia from 3 to 8 June 1976.  He received treatment and he was placed on convalescent leave.  It appears he recuperated and returned to duty thereafter.

2.  The evidence of record also shows he accepted punishment under Article 15, UCMJ, for absenting himself from sentry duty and for assaulting another Soldier. On 20 May 1977, charges were preferred against him for being AWOL for 86 days.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  During the process he did not mention any medical conditions he was experiencing.

3.  There is an absence of evidence to support his contentions for entitlement to a medical discharge.  His history of misconduct started before he was hospitalized for pneumonia.  There is no evidence he was found to be unfit by reason of physical disability during his period of active duty.  He acknowledged the reason for his separation.  He did not mention any medical conditions he was experiencing and he was medically cleared for separation.

4.  He has submitted neither probative evidence nor a convincing argument to show he had any medical conditions that would have amounted to a disability separation under the provisions of Army Regulation 635-40.  Therefore, he is not entitled to a medical discharge.

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)                                         AR20120005132



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005132



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1