IN THE CASE OF:	  

		BOARD DATE:  18 July 2013

		DOCKET NUMBER:  AR20120023007 


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 correction of his 1971 under other than honorable conditions discharge to a medical discharge.

2.  The applicant states his discharge should be changed due to medical reasons.  It has been proven that he was on the Korean Demilitarized Zone (DMZ) during the spraying of Agent Orange, beginning on 1 April 1968.  It has also been proven that he was showing the symptoms of Agent Orange 
10 months later.  The military put his health issues aside for thoughts that Agent Orange was not sprayed at the Korean DMZ.  In February 2012, the military issued a statement stating that Agent Orange was sprayed at the DMZ.  

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 22 October 1969 and 6 April 1971
* Self-authored chronology of his service and hospitalization
* Various Department of Veterans Affairs (VA) documents related to his Compensation and Pension (C&P) examination
* Civilian health records and listing of current medications
* Multiple statements in support of his VA claim
* A tape-recorded mother's day greeting/recording  
* Multiple internet articles related to Agent Orange
* Internet article titled "Chronology of Incidents (DMZ)"
* Letters related to medical appointments
* Divorce decree
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 (RA) on 2 November 1967.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  

3.  He served in Korea from 1 April 1968 to 30 April 1969 and upon completion of his overseas service tour, he was reassigned to the 4th Battalion, 65th Artillery, Chatsworth, CA.  He was honorably discharged on 22 October 1969 for the purpose of immediate reenlistment.  He reenlisted in the RA on 23 October 1969. 

4.  On 5 January 1970, he departed his unit in an absent without leave (AWOL) status and on 3 February 1970, he was dropped from the Army rolls as a deserter.  He returned to military control on 5 April 1970.  He was attached to Fort Belvoir, VA

5.  On 24 April 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 5 January to 5 April 1970. 

6.  On 1 May 1970, he again departed his unit in an AWOL status but he returned on 2 May 1970.  However, on 20 May 1970, he again departed his unit in an AWOL status.  He ultimately returned to military control on or about 18 August 1970.  

7.  On 18 September 1970, he was convicted by a special court-martial of two specifications of AWOL from 1 to 2 May 1970 and 20 May to 18 August 1970.  The court sentenced him to a reduction to the lowest enlisted grade and confinement at hard labor for 2 months.  The convening authority approved his sentence on 10 November 1970.
8.  On 4 December 1970, he again departed his unit in an AWOL status and he was also dropped from the rolls as a deserter on that date.  He ultimately returned to military control on 11 February 1971.  

9.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain the following documents:

	a.  Special Orders Number 79, issued by Headquarters, U.S. Army Engineer Center, Fort Belvoir, VA, on 2 April 1971, ordering his reassignment to the U.S. Army Separation Transfer Point effective 6 April 1971, for discharge processing.  The orders listed the type of discharge as "Under Other Than Honorable Conditions" and the reason for discharge as "For the Good of the Service." 

	b.  A letter, dated 6 April 1971, acknowledged by the applicant, ordering his expulsion from the U.S. Military Reservation as an undesirable person. 

	c.  A properly-constituted DD Form 214 that shows he was discharged on 6 April 1971, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) in lieu of trial by court-martial with a character of service as under other than honorable conditions.  He completed 6 months and 12 days of active service during this period and he had 332 days of lost time.  

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

11.  Although he submitted various VA medical documents (related to his C&P examination), civilian medical records, and various internet articles, nothing in his official records shows:

* he suffered and/or was diagnosed with an illness or an injury that rendered him unable to perform the duties required of his former grade or military specialty
* he was issued a physical profile of a permanent nature that prevented him from performing the duties required of his former grade or military specialty
* he was found medically unqualified for separation in 1971
* he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES)

12.  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 general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

	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.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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.  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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  

14.  Army Regulation 635-40 provides guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  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.

15.  Army Regulation 635-40 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.

	a.  Chapter 3 states disability compensation is not an entitlement acquired by reason of a service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Chapter 4 states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically discharged. 

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  The available evidence shows he was discharged on 6 April 1971 in lieu of a court-martial.  

3.  Given his last period of AWOL, it appears he was charged with the commission of offense(s) 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.  He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 

4.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. Most importantly, however, is the fact that once he was pending a punitive discharge - that would have been adjudged by a court-martial - he was no longer eligible to enter the PDES even if he had a medical condition that rendered him unable to perform the duties required of his grade and MOS.    

5.  In any case, referral to the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  Here, there is no evidence the applicant had: 

* a permanent physical profile
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* a medical examination that warranted his entry into the PDES

6.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions. 

7.  In the applicant's case, contrary to his belief and/or assertion, not only was he not diagnosed with any disabling condition, his service was not interrupted by any medical condition.  His service was interrupted by his misconduct and choice to request a voluntary discharge in lieu of undergoing a court-martial.  He could have elected a court-martial if he felt he had a medical condition that caused his misconduct.

8.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 

9.  A key element of the Army PDES is the Soldier’s conditions at the time of separation.  It is not intended to be a prediction of future medical ailments.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  

10.  The applicant has failed to support his contention that he was medically unqualified at the time of his 1971 discharge or that he was eligible for disability processing.  Therefore, he is not entitled to the requested relief.




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)                                         AR20120023007





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ABCMR Record of Proceedings (cont)                                         AR20120023007



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