IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120022658 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he does not believe the circumstances of his chronic illness, which affected his ability to perform military duties, was properly considered.  His illness caused him to be depressed which led to his going absent without leave (AWOL).

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his DA Form 20 (Enlisted Qualification Record), his DD Form 47 (Record of Induction), a DA Form 268 (Report for Suspension of Favorable Personnel Actions), a DA Form 188 (Extract Copy of Morning Report), four memoranda, two letters, an electromyography (EMG) report, and two pages of progress notes.

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 provides his DD Form 47, dated 14 January 1970, wherein it shows in section II (Local Board Medical Interview) that the applicant did not state that he had any physical defects or diseases.  This form also shows the examining physician did not find the applicant had any physical profile limitations and determined he was found acceptable for induction into the Armed Forces.

3.  The applicant’s records show he was inducted into the Army of the United States on 16 July 1970.  On 27 July 1970, he was assigned for basic combat training (BCT) to the 1st Training Brigade, Fort Campbell, KY.  

4.  His records contain a Standard Form 600 (Chronological Record of Medical Care), dated 29 August 1970, that shows he was seen at the Fort Campbell dispensary on that date for a complaint of muscle pain in both legs; he also stated he had had polio.  The examining physician noted the physical examination was unremarkable and he was returned to duty.

5.  He completed BCT at Fort Campbell, KY, and on 21 September 1970, he was assigned for advanced individual training (AIT) to the 3rd Battalion, 3rd AIT Brigade, Fort Polk, LA.  

6.  On 25 September 1970, he was seen at the Fort Polk dispensary for a complaint that his legs had been bothering him since childhood and he had severe pain.  The applicant also noted he had pain in both thighs and calves.  He denied having back pain, muscle weakness, or loss of sensation in his legs.  The examining physician noted the exam showed he had full range of motion of his joints, no muscle weakness, and there were no muscle spasms.  He diagnosed him with a muscle strain and prescribed him medication.

7.  On 29 September and 10 October 1970, he was seen at the Fort Polk dispensary for complaints of continued leg pain.  He was referred to orthopedics for further evaluation.

8.  On 23 October, 9 November, and 17 November 1970, he was seen by different physicians at the orthopedic clinic at Fort Polk, LA.  The examining physicians all found his motor functions normal, that x-rays of his legs were normal, and that there was no evidence of disease.  

9.  There is no evidence in his available medical records that shows he was treated for, or diagnosed with, depression while serving on active duty.
10.  He subsequently successfully completed AIT and he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewmember).  

11.  On 2 December 1970, he was reported as AWOL from his assigned unit.  On 5 January 1971, he was dropped from the rolls as a deserter.

12.  Special Orders Number 332, dated 4 December 1970, issued by Headquarters (HQ), U.S. Army Training Center, Fort Polk, LA, assigned him to the U.S. Army Overseas Replacement Station, Oakland, CA, with a reporting date of 8 January 1971, for further assignment to Vietnam.

13.  On 8 May 1971, he was apprehended and returned to military control at Fort Leonard Wood, MO.  On 8 June 1971, court-martial charges were preferred against him for one specification of being AWOL from 2 December 1970 to 7 May 1971.

14.  On 16 June 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

15.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  

16.  With his request for a discharge, he submitted a statement in his own behalf wherein he stated:

   a.  When he was a child he could not walk and at age 5 he was admitted to the hospital for treatment of polio.  From the ages of 7 to 13, he either had braces on his legs or used crutches to aid him with walking.  He began to develop a complex about the abnormality he was faced with.  He gave up his crutches but remained on his medication until his induction.
   b.  He was drafted into the Army on 16 July 1970 and after BCT he was sent to Fort Polk, LA, for AIT.  He went AWOL from Fort Polk on 2 December 1970 because the pressures being brought on him were more than he could bear.  He was having difficulties through BCT and AIT with his legs as a result of having polio when he was a child.  During BCT he felt weakness in his legs from the usage of his legs that he wasn’t used to but he was determined to overcome it.  
   
   c.  At first he was scared to go on sick call but when he did the doctors told him there was nothing they could do for him.  They gave him pain pills but they didn’t seem to help.  When he returned to duty, he was given extra duties to perform which he felt were unnecessary.  He kept returning to sick call as the pain got worse and sometimes he was refused permission to go on sick call.  He could not understand why he had to suffer because of his incapability and he was constantly being abused.
   
   d.  The [personnel] at the induction center led him to believe the Army would take care of his medical problems.  The doctor at the induction center included a statement in his records of his ailment and a letter from his [civilian] doctor explaining his ailment.  
   
   e.  When he finished AIT, he was told he was on orders for Vietnam and he felt his chances of returning from there were very slim so he went AWOL.  He wanted to turn himself in but he was afraid of the consequences.  He was apprehended by the Federal Bureau of Investigation on 3 May 1971, taken to the police station in Chicago, and then to Fort Leonard Wood, MO.  He is still suffering pain in his legs and that is why he feels his discharge should be approved.

17.  On 30 June 1971, his immediate and senior commanders recommended approval of his request with an Undesirable Discharge Certificate.

18.  On 12 July 1971, the separation authority approved his request for a discharge in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate.  One 26 July 1971, he was discharged accordingly.

19.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 7 months and 6 days on net active service with 156 days of lost time due to being AWOL.

20.  There is no evidence in his record that shows he requested assistance in dealing with depression or stress related to any health issues.  There is no evidence that shows he was diagnosed with, or treated for, any depression/stress issues/problems throughout his period of active service.

21.  On 12 July 1989, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.  

22.  The applicant provides:

   a.  A page titled progress notes, dated 6 August 2006, wherein it shows the applicant was seen at an unspecified medical facility for a complaint of a change in sensation in his right leg and thigh.  He had stated this had been going on for several years and he thought it was getting worse.
   
   b.  An EMG report, dated 19 December 2006, wherein the attending physician stated the applicant was referred for evaluation of possible peripheral neuropathy.  The applicant described a one to two-year history of diffuse aching pain in the legs, occasional cramping, and an inability to straighten the leg.  There was a reported past history of poliomyelitis at the age of 3 but the details of the illness were not clear (emphasis added).  There was no evidence of peripheral neuropathy and the chronic denervative activity found in both lower extremity muscles was nonspecific, but may reflect the patient’s prior reported history of poliomyelitis.
   
   c.  A page titled progress notes, dated 6 March 2007, wherein it shows the applicant was seen at an unspecified medical facility for a complaint of pain from his hip all the way down to his toes that had been going on for the past 6 years and had gotten worse in the last 3 years.  He had leg weakness and trouble walking when the pain got bad.  He also reported that he had polio at birth and had a few heart attacks.

23.  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 included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	a.  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.

	b.  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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  Although the applicant was seen on several occasions by medical personnel for complaints of muscle/leg pain, the evidence or record does not show and the applicant has not provided any evidence that shows he was ever diagnosed with any medical condition that caused his reported muscle pain while serving on active duty

4.  In addition, the evidence of record does not show and the applicant has not provided any evidence that shows he was ever treated for, or diagnosed with, depression while serving on active duty and that was the reason he went AWOL.  In a statement he submitted in his own behalf when he requested a discharge in lieu of court-martial, he stated he went AWOL because he was told he was on orders for Vietnam.  

5.  His record shows he was AWOL for 156 days before he was apprehended and returned to military control.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct 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 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)                                         AR20130001023



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ABCMR Record of Proceedings (cont)                                         AR20120022658



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