IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120010099 


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, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he was given bad advice by an officer.  He had been discharged from the Fort Leonard Wood, MO, hospital with a permanent physical profile.  He does not remember even being trained in a secondary military occupational specialty (MOS).  He was never given what he considers meaningful duty.  He was on the roster but was never called for anything.  When he asked his commander about the best way to get out of the Army, he was told to go absent without leave (AWOL).  He did so and received a discharge under other than honorable conditions.  He had spent 9 months in a hospital and when he was discharged from the hospital his demeanor and personality were different.  He left the hospital disfigured and - he thought - very ugly.  Before the accident, he was a good Soldier.

3.  The applicant provides:

* DA Form 8-275-2 (Clinical Record Cover Sheet)
* Standard Form 502 (Clinical Record Narrative Summary (NARSUM))
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)


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 records show he enlisted in the Regular Army on 26 August 1969.  He completed basic combat training at Fort Ord, CA, and he was subsequently reassigned to Fort Leonard Wood, MO, on or about 24 October 1969 for advanced individual training.

3.  On or about 21 December 1969, he was involved in an automobile accident.  His NARSUM shows he was admitted to the U.S. Army Hospital at Fort Leonard Wood, MO, and underwent a series of surgical procedures, medical evaluations, x-ray examinations, skin graft, therapy, and ultimate recovery.  He remained in the hospital for approximately 9 months, including periods of convalescent leave.  He was discharged from the hospital to duty with a permanent "3" physical profile in his lower extremities and a permanent "2" physical profile for his eyes with code "C" (some limitations), including no low-crawling and marching at his own pace.  The doctors recommended a change in MOS into a non-combat MOS.

4.  He was issued a physical profile on or about 25 August 1970 that shows the nature of his disposition as "duty with permanent assignment limitations due to fracture of left femur, distal shaft."

5.  Accordingly, he remained at Fort Leonard Wood, MO, and he was initially assigned to Headquarters Command, U.S. Army Training Center, within the limits of his physical profile as a supply clerk.  He was later (July 1971) assigned to Headquarters Company, 5th Engineer Battalion, as a light vehicle driver.

6.  On 28 December 1970, he departed his unit in an AWOL status.  He returned to military control on 1 January 1971.

7.  Following his return, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 21 December 1970 to 1 January 1971.

8.  On 28 April 1971, he again departed his unit in an AWOL status and he was dropped from the Army rolls as a deserter on or about 27 May 1971.  He returned to military control on 22 June 1971.

9.  Following his return, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 28 April to 22 June 1971.

10.  He again departed his unit in an AWOL status on three separate occasions as follows:

* 12 July to 10 August 1971
* 19 August to 12 September 1971
* 27 September to 5 December 1971

11.  A DD Form 458 (Charge Sheet) is not available for review with this case.  However, it appears that his chain of command preferred court-martial charges against him for three specifications of AWOL totaling 155 days.

12.  It also appears that he consulted with legal counsel and he was presumably advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him. 
It appears that he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations) following consultation with legal counsel.  In his request for discharge, he would have acknowledged he:

* was making this request of his own free will and he had not been subjected to any coercion whatsoever
* understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* understood he could expect to encounter substantial prejudice in civilian life

13.  His company and battalion commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  The company commander stated the applicant was pending trial for AWOL on three occasions totaling 155 days and he previously had two periods of AWOL totaling 59 days.

14.  On 15 January 1972 consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to the lowest enlisted grade, if applicable, and the issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 4 February 1972.

15.  his DD Form 214 shows he was discharged on 4 February 1972 under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 1 year, 11 months, and 10 days of creditable active military service during this period and he had 183 days of lost time recorded on his DD Form 214.

16.  There is no indication the applicant petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

17.  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 honorable or a general discharge is authorized, an undesirable discharge was considered appropriate at the time the applicant was discharged.

18.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.

19.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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 honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he appears to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge after multiple instances of AWOL totaling 155 days.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He appears to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  His automobile accident and subsequent hospitalization, treatment, and discharge from the hospital with a restrictive physical profile are noted.  However, there is no evidence his misconduct was caused by this accident.  Additionally, there is no provision to upgrade a discharge because of hospitalization.  His record was marred with misconduct that included two instances of NJP and an extensive history of AWOL.

3.  The applicant was not discharged because of his accident.  On the contrary, his chain of command appears to have accommodated his restrictive physical profile and assigned him to duties that appear to be consistent with the restriction on his profile.  He was discharged because he chose to be AWOL and he chose to be discharged.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20120010099



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ABCMR Record of Proceedings (cont)                                         AR20120010099



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