IN THE CASE OF:  	  

		BOARD DATE:  10 March 2015	  

		DOCKET NUMBER:  AR20140012353 


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, correction of her record to show she was determined to be medically unfit by the Physical Disability Evaluation System (PDES) and retired by reason of physical disability.

2.  The applicant states:

   a.  She needs a full physical completed to determine her percentage of disability in her left leg and hip.  A test was never initiated prior to her going absent without leave (AWOL) or upon her surrender despite repeated requests by the Soldier.  She further states bi-polar disorder, post-traumatic stress disorder, and depression are all reasons for her going AWOL.  These ailments are genetic and in her family for four generations.

   b.  The applicant does not want benefits, just medical treatment.  She knows she did not break her leg prior to her training at Fort Leonard Wood, MO.  While in training, she broke it in a boot and it is a disability that destroys her life.  She claims she needs treatment for the rest of her life due to the injury.
   
   c.  Her leg has been disabled since 2005.  She was injured during training and she received three pins in her left upper femur.  While awaiting a medical discharge, her 11-year old daughter was molested which resulted in her going AWOL.
   
   d.  Upon her surrender and return to military control, she repeatedly begged her leadership to receive a full physical because her leg was disabled and was not healing; however, her pleas for medical treatment continued to be ignored.   She went AWOL at the end of basic training during the start of her physical therapy.  In addition, she did not receive the right to a fair court-martial because a man bluntly ignored her limping.  She was injured and disabled by the U.S. Army prior to her court-martial proceedings. 
   
   e.  The overlooked injury has cost her employment, two husbands, and her daughter.  The reason she went crazy and deserted was due to her daughter who was being neglected and molested and her command would not support her request for emergency leave.  She is currently filing for Social Security Disability Insurance due to her mental and physical disabilities.
   
   f.  During her week of out-processing, she was lied to about the location of her medical records and she was constantly told she was a piece of crap who would not receive a medical discharge because she was a deserter.  Her medical records would have shown how severely injured she truly was and she should have been placed back into physical therapy in order to complete a medical discharge, not a court-martial proceeding. 
   
   g.  The applicant further states she needs her DD Form 214 (Certificate of Release or Discharge from Active Duty), and all of the medical records pertaining to her time in basic training, physical therapy, and surgery.   

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 15 September 2005.

3.  On or about 4 February 2006, she departed her training unit in an AWOL status and on 3 March 2006, she was dropped from the Army rolls.  On 14 March 2006, she surrendered to military authorities at Fort Sill, OK.

4.  Her record contains a memorandum, dated 16 March 2006, in which the applicant states her daughter attempted suicide the morning of her departing AWOL.  Her daughter had taken pills and she previously threatened suicide.

5.  On 17 March 2006, court-martial charges were preferred against the applicant for being AWOL from on or about 4 February to on or about 14 March 2006.

6.  On 17 March 2006, 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 discharge under other than honorable conditions.  She was advised of the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to her.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

7.  In her request for discharge, she acknowledged she was making this request of her own free will and had not been subjected to any coercion whatsoever by any person.  She also understood that by requesting a discharge she was admitting guilt to the charges against her or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  She further acknowledged she understood that if the discharge request were approved she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws.  In her request for discharge, she indicated she did not desire a physical evaluation prior to her separation.  Evidence indicates she submitted a statement on her own behalf; however, it was not located with her request.

8.  The applicant's record contains:

   a.  a letter, issued by the Mississippi Department of Education, dated              7 December 2005, which informed the applicant her school age child had accumulated seven unexcused absences during the school year; and 

   b.  an electronic mail (email) letter, issued by the commander, 82nd Chemical Battalion, dated 26 February 2006, sent to the applicant's email address.  The letter states the battalion commander received her letter explaining the reasons she went AWOL.  The letter informs the applicant that when she left, he was personally involved with the hospital reviewing her medical status and the plan to get her better.  He further addresses the alternatives to her going AWOL in order to address her family issues with her daughter.  He states he could have placed her on leave in order to provide an alternative plan for taking care of her daughter and noted that he was already working with her chain of command, legal, and post agencies which would allow her to be an Army Soldier and take care of her family at the same time.

9.  On 10 June 2006, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  On 30 June 2006, the applicant was accordingly discharged.

10.  The DD Form 214 she was issued shows she was discharged for the good of the service in lieu of a trial by court-martial with an under other than honorable conditions discharge.  She had completed 8 months and 5 days of creditable active military service and she had lost time for the period 4 February to            14 March 2006.

11.  On 28 March 2008, the Army Discharge Review Board denied the applicant's request for an upgrade of her discharge.

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, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  Separation [or retirement] by reason of disability requires processing through the PDES.  Chapter 4 of this regulation contains guidance on processing Soldiers through the PDES, which includes the convening of a Medical Evaluation Board (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.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also 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.

14.  Paragraph 4-1 (Soldiers charged with an offense) states the case of a Soldier who is under investigation for an offense chargeable under the 
UCMJ which could result in dismissal or punitive discharge, may not be referred 
for, or continue, disability processing unless the investigation ends without charges, the officer exercising proper court-martial jurisdiction dismisses the charges, or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and contentions were carefully considered; however,  it was determined that there is insufficient evidence to support her request.

2.  The applicant's medical records were not available for the Board's review. However, there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Her record does not contain any evidence which shows she had a physical profile or that she was unable to perform her duties prior to going AWOL.  After she returned from being AWOL she was charged with an offense chargeable under the UCMJ which could result in dismissal or punitive discharge.  The applicant subsequently requested to be discharged in lieu of trial by court-martial which resulted in the issuance of an under other than honorable conditions discharge.  Since the charges were not dropped at any time, she was not eligible for referral through the PDES.  In addition, evidence clearly shows in her request for discharge, she indicated she did not desire a physical evaluation prior to her separation.  

4.  Evidence shows she was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized her rights.  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 her overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140012353





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ABCMR Record of Proceedings (cont)                                         AR20140012353



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