IN THE CASE OF:	

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140013526 


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:

	a.  correction of his records to show he was medically discharged or

	b.  an upgrade of his discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states there were extenuating circumstances.  His knee injury is service connected, but he is being denied Department of Veterans Affairs (VA) medical benefits because of his discharge for the good of the service in lieu of trial by court-martial.  His discharge has also caused him hardship over the years by being denied government employment.

3.  In an earlier application, dated 29 July 2013, he stated the only focus of his discharge proceedings at Fort Sill, OK, in 1984 and the Army Discharge Review Board (ADRB) in 1999 was the fact that he was absent without leave (AWOL).  The reasons leading to his being AWOL were not taken into consideration.  The mistreatment he suffered at Fort Ord, CA, while he was in a full-leg cast was unjust and seeking assistance through the chain of command was futile.  Prior to his assignment at Fort Ord, he was not a troublemaker or a misfit; he never had any problems completing basic and advanced individual training.  He loved driving the trucks.  Since he wasn't getting any relief from his leadership at Fort Ord, he left the base for self preservation.  He turned himself in to New Mexico State Senator P____ V. D____'s office after his parents got him home safely.  On his way to Fort Sill, the Amarillo, TX, local authorities arrested him for being AWOL.  By the time he was given the choice at Fort Sill to be discharged immediately or wait for a court-martial hearing, he used the poor judgment of a 19-year old and chose the fastest way out of the Army.  He didn't consider the long-term repercussions the discharge would have on his life.

4.  The applicant provides:

* selected service medical records
* Army Review Boards Agency correspondence, dated 2 July 2014, with DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 29 July 2013, with attachments –

* letter from his mother, dated 29 July 2013
* Physical Profile Board Proceedings, dated 6 October 1982
* DA Form 3647 (Inpatient Treatment Record Cover Sheet), dated 
13-24 June 1983
* Narrative Summary – Silas B. Hays Army Community Hospital, dated 9 July 1983

* ADRB Case Report and Directive, dated 23 June 1999, with attachments –

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 22 February 1999
* U.S. Senate correspondence, dated 2 February 1984
* letter from his mother, dated 22 February 1999
* self-authored statement, undated

* New Mexico State Senator M____ H____ Privacy Release Form, dated 18 August 2010, with attachments –

* statement from his mother, dated 23 September 2010
* Army Review Boards Agency correspondence, dated 24 April 1999
* self-authored letter, dated 5 May 1999
* National Archives and Records Administration Form 13060 (Referral), dated 11 March 1999
* photograph

* New Mexico State Senator M____ H____ Privacy Release Form, dated 7 June 2013, with letter from his mother, dated 24 June 2013
* Discharge Certificate under Other than Honorable Conditions, dated 7 March 1984
* Headquarters, U.S. Army Field Artillery Center and Fort Sill, memorandum, dated 2 March 1984, subject:  Letter of Debarment
* DA Form 3296-40 (Statements for Enlistment – Delayed Entry Program), dated 23 December 1981
* Fort Sill Form 159 (Request for Excess Leave without Pay and Allowances), dated 8 February 1984
* Headquarters, U.S. Army Field Artillery Center and Fort Sill, Order 059-30, dated 28 February 1984
* letter from his mother, dated 25 July 2014

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 U.S. Army Reserve under the Delayed Entry Program on 23 December 1981.  He was discharged from the U.S. Army Reserve on 9 June 1982 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 10 June 1982.

3.  He completed basic training and advanced individual training at Fort Dix, NJ, and he was awarded military occupational specialty (MOS) 64C (motor transport operator).  He was reassigned to Headquarters and Headquarters Company (HHC), 13th Engineer Battalion, 7th Infantry Division and Fort Ord, as a motor transport operator effective 7 December 1982.

4.  The applicant provided a copy of a Standard Form 600 (Chronological Record of Medical Care) showing he sought treatment at the Fort Dix Troop Medical Clinic on 5 October 1982 for left knee pain resulting from an injury while playing soccer.  He was diagnosed with a probable medial collateral ligament (MCL) sprain and referred to the Orthopedic Clinic for x-ray and evaluation.  The Orthopedic Clinic assessed him as having a grade II left knee MCL tear and his treatment plan recommended immobilization in a long-leg cast for 6 weeks.

5.  The applicant provided a copy of his Physical Profile Board Proceedings form, dated 6 October 1982, showing he was issued a temporary physical profile rating of 3 in his lower extremities until 17 November 1982 for a grade II left knee MCL tear and assigned the following limitations:  no crawling, stooping, running, jumping, and prolonged standing or marching exceeding 5 minutes in duration.

6.  The applicant provided a copy of a Standard Form 600 showing he returned to the Orthopedic Clinic on 12 October 1982 for replacement of his broken long-leg cast.  This same form shows he returned to the Orthopedic Clinic for follow-up evaluation of his grade II left knee MCL tear on 27 October 1982.  His condition was assessed as stable and the treatment plan involved repairing and adding hinges to his long-leg cast.

7.  The applicant provided a copy of a Standard Form 600 showing he returned to the Orthopedic Clinic on 15 November 1982 for follow-up evaluation of his grade II left knee MCL sprain/tear.  He indicated he felt well.  He was assessed as having mild atrophy of his left thigh, full range of motion without swelling, and mild residual laxity with firm endpoint MCL, otherwise stable without tenderness.

8.  The applicant provided a copy of an Alcohol and Drug Abuse Prevention and Control Program Client Progress Report, dated 22 March 1983, showing he was released from the Track II program upon satisfactory completion.

9.  The applicant provided a copy of a DA Form 3647 (Inpatient Treatment Record Cover Sheet) and Narrative Summary showing he was admitted to the Silas B. Hays Army Community Hospital, Fort Ord, on 19 June 1983 after sustaining an injury when he "jumped from a rock" approximately 1 week earlier.  He was diagnosed as having a partial anterior cruciate ligament (ACL) posterolateral band tear in his left knee.  He underwent a diagnostic arthroscopy on 21 June 1983 and he was fitted postoperatively with a bent-knee cylinder cast.  His treatment plan recommended wearing a cylinder cast or brace for 6 weeks and continued outpatient physical therapy with knee-strengthening exercises.  He was issued a temporary physical profile for a period of 2 1/2 months.  He was discharged from the hospital on 24 June 1983.

10.  The applicant provided a copy of his Physical Profile Board Proceedings form, dated 24 June 1983, showing he was issued a temporary physical profile rating of 3 in his lower extremities until 1 September 1983 for a torn ligament in his left knee and assigned the following limitations:  no running, jumping, knee bends, squats, or marching.

11.  His records contain a DA Form 4036-R (Medical and Dental Preparation for Oversea Movement) showing he had been alerted for an overseas assignment to Germany and requesting completion of the checklist not later than 15 July 1983 and completion of his health/dental records not later than 11 January 1984.  The medical and dental checklist shows he met all medical qualifications in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and had a physical profile rating of 111211, indicating a high level of medical fitness with minor hearing impairment as of 23 December 1981.

12.  The applicant provided a copy of a Standard Form 600 showing he returned to the Orthopedic Clinic on 19 July 1983 for removal of his cast and replacement with a brace.

13.  His records contain a DA Form 4384 (Commander's Report of Inquiry/
Unauthorized Absence) showing his initial date of unauthorized absence from HHC, 13th Engineer Battalion, 7th Infantry Division and Fort Ord, as 24 August 1983 with intent not to return.

14.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Order 038-31, dated 7 February 1984, assigned him to the Personnel Control Facility effective 3 February 1984.

15.  On 6 February 1984, charges were preferred against him for violating Article 86 of the Uniform Code of Military Justice for being AWOL from on or about 24 August 1983 to on or about 3 February 1984.  The Personnel Control Facility Commander recommended trial by court-martial.

16.  On 6 February 1984, he completed a Statement of Option – Medical Examination for Separation/Retirement wherein he indicated he did not desire a separation medical examination.  He understood he was not required to undergo a medical examination for separation from active duty.  He also understood that his medical records would be reviewed by a physician at a later date at the appropriate medical treatment facility.  If the review of his records indicated a problem, he would be required to have an examination even if he elected not to undergo a separation medical examination.

17.  His records contain a DA Form 4187 (Personnel Action), dated 8 February 1984, showing his duty status was changed from dropped from the unit rolls to returned to military control effective 3 February 1984.  The remarks state he was apprehended by civil authorities in Amarillo, TX, on 3 February 1984 and returned to military control at the Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, the same date.  He had been AWOL from HHC, 13th Engineer Battalion, 7th Infantry Division and Fort Ord, since 24 August 1983.

18.  On 8 February 1984, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He stated he understood he could request discharge for the good of the service because charges were preferred against him under the UCMJ for being AWOL during the period 24 August 1983 through 3 February 1984.

	a.  He stated he was making the request of his own free will and was not subjected to any coercion whatsoever by any person and he had been advised of the implications of his request.  He acknowledged he was guilty of the charges against him or of lesser-included offenses contained therein which authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated he did not desire further rehabilitation under any circumstances for he had no desire to perform further military service.

	b.  He stated he consulted with counsel who fully advised him of the nature of his rights under the UCMJ and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appear to be available at that time, and the maximum permissible punishment if found guilty.

	c.  He understood he could be discharged under other than honorable conditions and issued an Under Other than Honorable Conditions Discharge Certificate if his request for discharge were accepted.  He had been advised of and understood the possible effect of a discharge under other than honorable conditions and that he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws as a result of such a discharge.  He also understood he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	d.  He elected not to submit statements in his own behalf.

19.  On 15 and 16 February 1984, the applicant's unit and intermediate commanders recommended approval of his request for discharge for the good of the service and issuance of a discharge under other than honorable conditions.  On 24 February 1984, the Acting Commander, U.S. Army Field Artillery Center and Fort Sill, approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate and his reduction to the rank/grade of private/E-1.

20.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Order 059-29, dated 28 February 1984, reduced him in rank/grade to private/E-1 effective 24 February 1984.

21.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Order 059-30, dated 28 February 1984, discharged him effective 7 March 1984.

22.  On 7 March 1984, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 2 months, and 23 days of net active service during this period.  He was charged with lost time from 22 July 1983 through 17 August 1983 and from 24 August 1983 through 2 February 1984.  His service was characterized as under other than honorable conditions.

23.  The applicant provided correspondence from his mother, dated 22 February 1999, wherein she stated the applicant injured his knee 1 week before completing advanced individual training at Fort Dix and had to wear a full-leg cast for 6 weeks.  The applicant subsequently completed advanced individual training and was reassigned to Fort Ord.  His knee continued to bother him and he complained of harassment from certain members of his platoon.  He reported a few incidents to his leaders, but nothing was done to stop the wrongful treatment.  He came home on leave in June 1983 and seriously reinjured his knee.  He underwent surgery in June 1984 at Fort Ord and was returned to duty while wearing another full-leg cast.  She doesn't understand why he wasn't given light duty or convalescent leave until his knee healed.  Instead, he was expected to perform certain duties and responsibilities beyond what anyone in his medical condition should perform.  This expectation, combined with the increased mistreatment from his platoon members, became too much for him to handle and he left the base without authorization while still wearing a cast.  In February 1984, the applicant voluntarily turned himself in to New Mexico State Senator P____ V. D____'s office.  Senator D____ helped the applicant return to military control at Fort Sill where he was separated with an undesirable discharge.  She and their family believe the Army failed to resolve the applicant's situation at Fort Ord properly to ensure his safety and well-being by relieving him from regular duties while his knee healed.  She and the applicant request an upgrade of his discharge because of the unfair treatment he received at Fort Ord and the pain and suffering he endured as a result of his knee injuries.

24.  On 25 June 1999 after thoroughly reviewing his military records, including the available medical records as well as those he provided, the ADRB denied his request for an upgrade of his discharge to general under honorable conditions.  The ADRB noted his contention that his ability to serve was impaired by his medical or physical problems and considered his entire record of service for the period under review.  The ADRB determined he had many legitimate avenues through which to obtain assistance or relief from mistreatment without resorting to being AWOL.

25.  The applicant provided correspondence from his mother, dated 29 July 2013, wherein she stated she and the applicant have provided his pertinent medical records to the proper authorities, explaining in great detail why they think the ADRB decision should be reversed.  She and the applicant do not question the ADRB's deference to the UCMJ authority; however, the issues and reasons leading to the applicant's AWOL continue to be important after all these years.  The ADRB side-stepped these factors by stating the applicant had many legitimate avenues to obtain assistance or relief from mistreatment.  As a military veteran, she knows firsthand that sometimes the chain of command doesn't work as it should and it certainly failed in her son's case.  She and the applicant have compiled pages relating to his mistreatment that began at Fort Ord.  She does not believe there is any question as to the knee injury he suffered at Fort Dix.  It is all about him being AWOL while stationed at Fort Ord.  She and her husband talked him into returning to base which resulted in even worse treatment by certain members of his unit.  As a consequence of not getting any relief from his chain of command, he left the base again.

26.  The applicant provided correspondence from his mother, dated 25 July 2014, wherein she stated her son's applications were not given the full attention they deserve and are being dismissed arbitrarily by whoever reviews and analyzes the applications.  Pertinent medical records were included with his applications showing his injury was service connected.  She contends that no one has taken the time to read and address the correspondence pertaining to "extenuating circumstances."  The applicant's current discharge for the good of the service in lieu of trial by court-martial has rendered him ineligible for VA benefits for the past 21 years.  His discharge has also caused hardships over the years by disallowing him to apply for government employment.  This seems like a high price to pay for his youthful indiscretion and lack of foresight.  A medical discharge or a general discharge under honorable conditions would allow him to seek medical benefits and make him eligible for government employment until he retires.  The applicant received excellent surgical treatment at Fort Ord and his knee has not been problematic during the past 21 years.  However, his injury was service connected and the satisfaction and honor a discharge upgrade would provide to him and his family is a matter of principle.  After 30 years, it is time the applicant had his pride and honor restored by a good discharge so he can hold his head up with all of his other family members who hold honorable discharges.

27.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment.

	b.  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.

	c.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.  When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

28.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Chapter 3 provides that:

	a.  Soldiers who have one or more condition(s) that do not meet medical retention standards are referred to a medical evaluation board (MEB)/physical evaluation board (PEB) after attaining the Medical Retention Determination Point (MDRP).  The MRDP is when the Soldier's progress appears to have medically stabilized; the course of further recovery is relatively predictable; and where it can be reasonably determined that the Soldier is or is not most likely capable of performing the duties required of his or her MOS, grade, or rank.

	b.  A permanent profile may only be awarded or changed by the authority designated by commanders of Army medical treatment facilities.  All permanent profile ratings of 3 and 4 for Soldiers serving on active duty will be reviewed by an MEB physician or physician approval authority.

	c.  A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.

	d.  Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery, will be managed with temporary physical profiles until they reach the point in their evaluation, recovery, or rehabilitation where the profiling officer determines that MDRP has been achieved, but no longer than 12 months.

29.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

30.  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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a medical discharge or an upgrade of his discharge to general under honorable conditions and his contentions that he was mistreated and expected to perform certain duties and responsibilities beyond what anyone in his medical condition should perform were carefully considered.

2.  A discharge is not changed for the purpose of enhancing employment opportunities or qualifying an applicant for veterans' benefits.  Each application is reviewed to determine whether the evidence demonstrates an error or injustice exists and, if so, what relief is appropriate.

3.  His records show he injured his left knee on 5 October 1982 and was diagnosed as having a grade II MCL sprain/tear which required immobilization in a cast.  In June 1983, he again injured his left knee and was diagnosed as having a partial ACL tear.  He underwent diagnostic arthroscopic surgery and his knee was again immobilized in a cast.  He was issued temporary physical profiles following both injuries.

4.  His records contain no evidence and he provided no evidence to support his contention that he was denied appropriate convalescent leave following his surgical procedures.  Likewise, his records contain no evidence and he provided no evidence to support his contention that he was required to perform military duties in violation of the limitations noted in his temporary physical profiles.

5.  Further, his records contain no evidence and he provided no evidence showing he was diagnosed with a permanent unfitting medical condition that warranted evaluation by an MEB/PEB or entry into the Army Physical Disability Evaluation System.  Therefore, there is no basis for his separation by reason of physical disability (medical discharge).

6.  His records show he was charged with lost time from 22 July 1983 through 17 August 1983 and from 24 August 1983 through 2 February 1984.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged in writing that he had been advised of and understood the possible effect of a discharge under other than honorable conditions and that he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws as a result of such a discharge.  He also understood he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

7.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  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.



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)                                         AR20140013526



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ABCMR Record of Proceedings (cont)                                         AR20140013526



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