BOARD DATE: 17 April 2014
DOCKET NUMBER: AR20130012773
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 discharge be changed to a medical discharge.
2. The applicant states his period of absence without leave (AWOL) was due to being involuntarily hospitalized in the Vermont State Hospital for paranoid schizophrenia. He tried to obtain copies of his records but they were destroyed during Hurricane Irene in 2001.
3. The applicant provides a letter of support from his attending physician.
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 served on active duty in the Regular Army from 18 November 1982 through 25 November 1987.
3. He was advanced to specialist four on 1 February 1984 with reduction to private first class on 12 March 1987. The reason for the reduction is not of record.
4. In February 1987, he was reassigned from duty at Fort Lewis, Washington to Fort Ord, California for a follow-on assignment in Korea. He is reported as failing to report on 21 February 1987. His status was changed to AWOL the following day. He returned to military control at Fort Ord, CA on 1 June 1987 (3 months and 10 days).
5. On 8 June 1987, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge). He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions (UOTHC) and be furnished a UOTHC Discharge Certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.
6. The applicant's request for discharge in lieu of trial by court-martial was approved and he was discharged UOTHC on 25 November 1987. Concurrent with his discharge he was reduced to the lowest enlisted grade.
7. In November 2012, an attending physician wrote that it is his understanding that the applicant was given a UOTHC discharge around the time of a psychiatric hospitalization at Vermont State Hospital. The applicant told him that he had been AWOL at the time of his hospitalization. In light of his psychiatric hospitalization and continued psychiatric issues a careful review of his records should be undertaken to determine if his mental issues caused his behavior problems that resulted in his discharge.
8. The applicant's service medical records are devoid of any indication of a complaint, diagnosis, or treatment for any mental disorder.
9. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
10. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b(2), as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform
his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
DISCUSSION AND CONCLUSIONS:
1. The applicant has not provided and the record contains no evidence that he was suffering from any physical or mental condition at the time he went AWOL and was discharged.
2. The physician providing a supporting statement bases his comments and recommendations on information that appears to have been provided solely by statements from the applicant. While he indicates the applicant is suffering from a mental illness he does not provide a diagnosis of what that mental health condition is or when it was incurred.
3. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.
4. Without documentation that the applicant was suffering from a physical or mental condition that caused his AWOL, there is insufficient evidence to warrant any change in the applicant's reason for separation.
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.
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