IN THE CASE OF:	  

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006581 


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 a general, under honorable conditions discharge.

2.  The applicant states:

	a.  He was informed by the Department of Veterans Affairs (VA) representative to submit a request to have his discharge upgraded because he was let into the Army with a medical problem.  In 1967 or 1968, he was hospitalized at Barnes Hospital, St. Louis, MO, because he had been hit in his left eye with a block of wood and he temporarily lost his vision.  After months of medical treatment, his sight returned.

	b.  He enlisted in the Army in January 1971 (i.e., June 1972) and he was at Fort Leonard Wood, MO, when he began to have problems with his eye.  He sought medical treatment and asked for a discharge but it was denied.  He began to go absent without leave (AWOL) and was even hospitalized on one occasion.   He was sent to the Army stockade at Fort Leonard Wood, MO, and he again asked for a general discharge.  He was told he could be released within 30 days if he accepted an under other than honorable conditions discharge so, under medical distress, he signed the paperwork.

	c.  He feels he was treated unfairly by the Army.  He has been in and out of prison because of his discharge and he can never find jobs.  He was told if he stayed in the stockade for 6 months he could receive a general discharge.  It was the first time he was locked up and he was afraid so he took an under other than honorable conditions discharge so he could get out in 30 days.

3.  The applicant provides a letter.

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.  In conjunction with his enlistment in the Regular Army (RA) the applicant completed a Standard Form (SF) 93 (Report of Medical History) on 14 June 1972 wherein he indicated he was in good health.  He annotated this form to indicate he had vision in both eyes and did not wear glasses.  He also indicated he had been previously hospitalized in St. Louis, MO, for eye trouble.  He did not indicate the dates of his hospitalization or what type of eye trouble he had been treated for.  He was subsequently found qualified for enlistment.

3.  He enlisted in the RA on 22 June 1972.  On 28 June 1972, he was assigned for basic combat training (BCT) to the 1st Battalion, 2nd BCT Brigade, Fort Leonard Wood, MO.

4.  He was reported as AWOL from his assigned unit from:

* 13 to 23 July 1972
* 4 to 14 August 1972
* 31 August to 28 September 1972

5.  On 28 September 1972, he was returned to military control and assigned to the U.S. Army Personnel Control Facility (PCF), Fort Leonard Wood, MO.

6.  On 30 September 1972, he was seen at the Troop Medical Clinic (TMC), Fort Leonard Wood, MO.  His records contain an SF 600 (Chronological Record of Medical Care), wherein the examining physician stated the applicant claimed to have injured his eye in an accident a while ago and now claimed to have blurred vision in his left eye.  He wanted his eyes checked as he had been told that the eye would eventually have to "come out."  The examination revealed no visual loss or any other problems and he was returned to duty.

7.  On 5 October 1972, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 31 August to 28 September 1972.

8.  On 10 October 1972, he was reported as AWOL from his assigned unit.  On 5 December 1972, he was returned to military control and to the PCF, Fort Leonard Wood, MO.

9.  On 8 December 1972, he completed an SF 93 wherein he indicated he was in fair health.  He annotated this form to indicate he had once been blind in his left eye and he had back pain.

10.  On 8 December 1972, the examining physician completed an SF 88 (Report of Medical Examination) wherein he did not note that the applicant had any medical deficiencies/problems.  He stated the applicant was qualified for separation.

11.  On 18 December 1972, court-martial charges were preferred against him for one specification of being AWOL from 10 October to 5 December 1972 (56 days).

12.  On 20 December 1972, 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 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, chapter 10, for the good of the service - in lieu of trial by court-martial.

13.  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 VA, 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. 

14.  On 26 December 1972, his immediate commander recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.  The commander stated the applicant had demonstrated that he was unwilling to adjust to military service.  He had been interviewed and in view of his statements, demeanor, and attitude, discharge was considered to be for the good of the service.  He (the applicant) stated that if he was not discharged, he would continue to go AWOL.

15.  On 26 December 1972, his senior commander recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.  The commander stated it was his opinion the applicant would never be a productive Soldier. 

16.  On 5 January 1973, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 12 January 1973, he was discharged accordingly. 

17.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 by reason of for the good of the service - in lieu of court-martial (separation program number 246) with an under other than honorable conditions characterization of service.  He completed 3 months and 7 days of net active service and had 106 days (or 3 months and 16 days) of lost time due to being AWOL.

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

19.  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.

20.  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.

21.  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 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.  There is no evidence that shows he was told if he stayed in the stockade for 6 months he would receive a general discharge.  In his request for a discharge, he acknowledged that he understood if his request was approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  

3.  The applicant contends his discharge should be upgraded because he never should have been allowed to enlist in the Army as he had been temporarily blinded in his left eye in 1967 or 1968 and he went AWOL because he was denied medical treatment.  However, the available medical records show that in June 1972 he stated only that he had previously had "eye trouble."  The available records also show he was treated for a complaint of blurred vision in September 1972 and was not found to have any eye problems at that time.  Regardless, he was found qualified for enlistment and there is no evidence in the available records that shows he was ever denied treatment for eye problems while serving on active duty.  In addition, that is not a justifiable reason for going AWOL.

4.  His record of service shows he never completed BCT, he received NJP for being AWOL, and he again went AWOL for almost 2 months.  During his service, he went AWOL on 4 separate occasions and had a total of 3 months and 16 days of lost time for being AWOL at the time of discharge.  

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also 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)                                         AR20130006581





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ABCMR Record of Proceedings (cont)                                         AR20130006581



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