IN THE CASE OF:	  

		BOARD DATE:	    22 August 2013 

		DOCKET NUMBER:  AR20130000638 


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 under other than honorable conditions characterization of service and a medical discharge, for the period of service ending on 28 December 1976.  

2.  The applicant states his company commander told him he had decided to give him a dishonorable discharge because he did not like Soldiers who had served in Vietnam because they lost the war and actually gave him a direct order to divorce his wife.  While serving under this same company commander, he was sent to the field when his wife was pregnant and two weeks past her due date.  His first sergeant gave him permission to go home and check on her.  While he was home his wife had the baby.  He requested 10 days of leave through the rear commander and it was approved; however, when his commander came back and found out he called him back in and cancelled his leave.  He went absent without leave (AWOL) so that he could help take care of his wife and new baby.  

	a.  The lawyer he was given told him that because he was AWOL for 90 days, which was actually only 60 days, that he had two choices available to him at the time.  He could either apply for an undesirable discharge or spend 20 years in Fort Leavenworth without parole.  He chose a voluntary discharge since he felt he would not receive proper legal representation.

	b.  His VA rating decisions show he was awarded a 100% (percent) disability rating for post-traumatic stress disorder (PTSD).  He had previously applied to the "Review Board" and was granted an extension so that he could provide his Department of Veterans Affairs (VA) documents; however, it was 7 years before he heard from the VA because they have closed his case without his knowledge.

3.  The applicant provides his VA rating decision, dated 23 February 2012.

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.  After having previous enlisted service, the applicant reenlisted in the Regular Army on 6 January 1976 and held military occupational specialty 11C (Indirect Fire Crewman).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  His DA Form 2-1 shows he was assigned to Company A, 2nd Battalion, 60th Infantry Regiment, 9th Infantry Division, Fort Lewis, WA, from 8 March 1976 to 28 December 1976.  During the period of his assignment he was AWOL, for a period of 77 days, from 28 August 1976 to 12 November 1976.

4.  His military record did not contain any medical records.

5.  His record contains a court-martial charge sheet, dated 22 November 1976, which shows he was charged with being AWOL from on or about 28 August 1976 to on or about 13 November 1976.

6.  On 24 November 1976, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily 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.

7.  In this request for discharge he acknowledged he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 22 December 1976, the separation authority approved his request for voluntary discharge 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 Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 28 December 1976.

9.  His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged on 28 December 1976 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and that he received an under other than honorable conditions characterization of service.  He completed 9 months of net active service during this period of service and had 84 days of lost time.

10.  He provided a VA rating decision, dated 23 February 2012, which shows the VA awarded him a 100% service-connected disability compensation for PTSD.

11.  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, a discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally given.

12.  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.

13.  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.

14.  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 or her 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).

15.  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.

16.  Army Regulation 635-40 states a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  His record shows he was AWOL for 77 days (much more than the 10 days he stated he requested).  Based on his record of indiscipline, his 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 a general under honorable conditions or a honorable discharge.

3.  There is no evidence in the available records and he failed to submit any evidence that shows he suffered from a medical condition that would have warranted entry into PDES.

4.  Additionally, he was charged with an offense for which he could have been dismissed or given a punitive discharge.  As a result he was not eligible for referral to PEDS for disability processing.  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)                                         AR20130000638





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ABCMR Record of Proceedings (cont)                                         AR20130000638



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