IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140016606 


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 reconsideration of his earlier request for an upgrade of his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he has evidence of his diagnosis and treatment of a knee injury incurred while he was serving on active duty.

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 11 September 2014
* Page 1 of his VA Rating Decision, dated 21 May 1997
* two Standard Forms 600 (Chronological Record of Medical Care), dated 21 May 1979

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140000863 on 26 August 2014.

2.  The applicant provides medical records not previously considered that warrant consideration by the Board at this time.

3.  The applicant enlisted in the Regular Army on 13 December 1978.

4.  DA Forms 4187 (Personnel Action) show changes in his duty status as follows:

* 19 June 1979 – present for duty to absent without leave (AWOL)
* 18 July 1979 – AWOL to dropped from the rolls
* 9 December 1979 – dropped from the rolls to attached/returned to military control

5.  Court-martial charges were preferred against him for being AWOL from on or about 19 June 1979 to 9 December 1979.

6.  On 17 December 1979, he underwent a mental status evaluation and the examining physician psychiatrically cleared him for any administrative action deemed appropriate by his commander.

7.  On 17 December 1979, he signed a Medical Examination for Separation Statement of Option wherein he checked the box indicating he did not desire a separation medical examination.

8.  On 18 December 1979, 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.

9.  After consulting with counsel, 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 acknowledged his guilt and that:

* he understood he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the VA as a result of such a discharge
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions
* he did not elect to submit a statement in his own behalf


10.  On 4 January 1980, his immediate commander recommended approval of his request for discharge with the issuance of a Discharge Certificate under Other Than Honorable Conditions.  His commander stated the applicant completed 6 months and 6 days of active service and he was charged with being AWOL 73 days.  The applicant had been AWOL for personal reasons, he was unable to adjust to military life, and rehabilitation efforts would be futile.

11.  On 11 January 1980, the separation authority approved the applicant's request, directed his reduction to the rank/grade of private/E-1, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 18 January 1980, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 7 months and 15 days of net active service during this period with 32 days of excess leave and 173 days (5 months and 23 days) of lost time due to being AWOL.

13.  The applicant provided a copy of page 1 of his VA Rating Decision, dated 21 May 1997, that shows he incurred torn medial ligaments in his right patella on 16 May 1979 and the VA awarded him medical care eligibility for this injury under the provisions of Title 38, U.S. Code, chapter 17.

14.  He also provided two Standard Forms 600 that show he received treatment on the following dates for the conditions indicated:

* 17 May 1979 – knee sprain
* 21 May 1979 – follow-up care and assignment of duty restrictions
* 25 May 1979 – follow-up leg check

15.  On 26 August 2014, the ABCMR denied his request for an upgrade of his discharge under other than honorable conditions to an honorable discharge.

16.  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 limitations.

17.  His records are void of evidence and he failed to provide evidence showing he was found unfit for any medical conditions or referred for processing through the Army Physical Disability Evaluation System.  Additionally, he declined a separation medical examination.


18.  Army Regulation 40-501 (Standards of Medical Fitness), then in effect, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provided the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter were referred for disability processing.

19.  The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, rank, and grade.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

20.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.

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

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant incurred an injury to his knee while he was serving on active duty, his records are void of and he failed to provide evidence showing he was found unfit for any medical conditions or referred for disability processing.  Further, he declined a separation medical examination prior to his discharge.

2.  Nevertheless, 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.  After consulting with counsel and being advised of his rights, he 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.  His misconduct clearly diminished the overall quality of his service below that meriting an honorable or a general discharge.  In view of the foregoing evidence of record, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20140000863, dated 26 August 2014.



      ___________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)                                         AR20140016606



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ABCMR Record of Proceedings (cont)                                         AR20140016606



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