IN THE CASE OF:	  

		BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20130000724 


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 changed to a medical discharge.  

2.  The applicant states, in effect, there were never any mental or psychological examinations done.  He has experienced medical and psychiatric issues since he entered the military.  He has experienced a learning disability and had physical issues throughout his entire life and he continues to be on medication for these issues.  The stigma of an under other than honorable conditions discharge increases his depression and bipolar disorder symptoms and makes it harder for him to deal with everyday life.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two statements from a case manager at A.W.A.R.E., Incorporated.

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 10 July 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  

3.  He served in Germany from on or about 29 November 1980 to 20 May 1982.  He was awarded or authorized the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Grenade Bar, and Overseas Service Ribbon.  

4.  On 23 August 1982, at Fort Stewart, GA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a superior noncommissioned officer.  

5.  On 21 September 1982, also at Fort Stewart, GA, he again accepted NJP under the provisions of Article 15 of the UCMJ for being incapacitated in the performance of his duties as a result of previous indulgence in alcohol. 

6.  He departed his unit in an absent without leave (AWOL) status from 
12 to 16 November 1982.  As a result, on 22 November 1982, he accepted NJP under the provisions of Article 15 of the UCMJ for this period of AWOL.

7.  He departed his unit in an AWOL status from 4 to 14 December 1982.  On 
20 December 1982, he departed his unit in an AWOL status for a third time and on 10 January 1983 he was dropped from Army rolls as a deserter.  He ultimately surrendered to military authorities at Fort McClellan, AL, on 28 March 1983.  

8.  On 29 March 1983, court-martial charges were preferred against him for the above periods of AWOL.

9.  On 29 March 1983, he was counseled regarding a medical examination.  He indicated that he had been counseled on the requirements to complete a medical examination prior to separation and understood that he could request one.  He further acknowledged he understood that if he elected a medical examination a mental status evaluation would also be required for separation processing.  He indicated "I do not desire to undergo a medical examination" and placed his initials and signature.  

10.  On 1 April 1983, the applicant consulted with legal counsel and was 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 of the procedures and rights that were available to him.  Following consultation with legal counsel, 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).  In his request for discharge the applicant acknowledged that:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person; 

	b.  he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge; 

	c.  he acknowledged he understood that if the 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws; 

	d.  he elected not to submit a statement on his own behalf; and

	e.  he was advised of his right to request a physical prior to separation, but he indicated that he did not desire a separation physical.  

11.  On 4 April 1983, the immediate and intermediate commanders recommended approval of the applicant's discharge action with the issuance of an under other than honorable conditions discharge.  The immediate commander stated:

	a.  the applicant's conduct had rendered him triable by a court-martial under circumstances that could lead to a bad conduct discharge or a dishonorable discharge; 

	b.  based on his previous record, punishment was expected to have a minimal rehabilitative effect; and 

	c.  there did not appear to be any reasonable grounds to believe the applicant was mentally defective, deranged, or abnormal.  

12.  On 14 April 1983, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if serving above the grade of E-1 at the time of this discharge action.  On 29 April 1983, the applicant was accordingly discharged.  

13.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 5 months, and 28 days of creditable active military service and he had lost time from 4 to 13 December 1982, 12 to 15 November 1982, and 20 December 1982 to 27 March 1983.  

14.  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.

15.  His medical records do not indicate:

* he suffered from an illness or an injury that did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness) 
* he was issued a permanent profile that restricted his ability to perform the duties required of his former grade and military specialty
* he was diagnosed by medical authorities of a mental or physical disability 
* he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES)

16.  He provides two statements from an A.W.A.R.E., Incorporated case manager who indicates in:  

	a.  The first statement that she is an advocate for the applicant regarding the upgrade of his discharge so that he may be eligible to receive VA benefits.  She opines that the stigma of his discharge is still affecting his livelihood.  He has a diagnosis of a bipolar disorder and he believes he has had it throughout his life.  She also states that he believes his post-traumatic stress disorder has worsened since he was discharged.  

	b.  in the second statement, the case manager reintroduces herself and elaborates a little more on the applicant's childhood (mental and physical abuse). She restates his diagnosis and how it has affected his daily life.  

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

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.  

20.  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) 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, chapter 3.  

	a.  If an 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.

	b.  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.

	c.  Chapter 3 states disability compensation is not an entitlement acquired by reason of 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.

	d.  Chapter 4 states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for physical disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be changed to a medical discharge.

2.  The applicant's records show 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to the medical discharge: 

	a.  There is no evidence in his records and none was provided with this application to show he suffered an injury or was diagnosed with an illness or any 
other medical condition that did not meet retention standards or rendered him unable to reasonably perform the duties required of his former grade or military
specialty.  In any case, he was counseled regarding his right to a medical examination that also required a mental status evaluation but he declined both.  It is reasonable to presume that if there had been any mental or physical conditions, he would not have declined an examination.

	b.  The applicant was not discharged because of any medical condition.  He was discharged because he chose to go AWOL, not once but three times.  First he was punished for being AWOL but that did not rehabilitate him.  He then went AWOL on two separate occasions and when he returned he elected not to face a court-martial.  He chose the voluntary discharge.  He was counseled and was fully aware of the implications of his actions. 

	c.  Medical disability processing 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.  The applicant's service was not interrupted by a medical or a mental condition.  It was interrupted by his choice to go AWOL and subsequent choice to be discharged and decline medical/mental examinations.  Also, since he was charged with offenses for which he could be given a punitive discharge, he was not eligible for disability processing.

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 also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge 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)                                         AR20130000724



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ABCMR Record of Proceedings (cont)                                         AR20130000724



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