IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140018316 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

	a.  Item 24 (Character of Service) either under honorable conditions (general) or honorable service.

	b.  Item 28 (Narrative Reason for Separation) he was discharged for medical reasons.

2.  The applicant states, in effect, he was raised on a farm in Kinston, NC and he did not have anything when he was growing up.  He tried hard to take care of his 3 children.  He wanted them to have the things he never had.  This mentality became his downfall.  He did not want to be a dead beat father.  His actions were necessary because his children did not have anywhere to stay or food to eat.  He needed to provide for his children so they could simply live and it took everything out of him. 

	a.  He enlisted in the Army on 23 August 1979 at Fort Jackson, SC.  He knew "she" (presumably his wife or girlfriend) was receiving money from the Army to take care of his 3 children.  Unfortunately, she hired a nanny she trusted to help take care of the children and this person took advantage of her by taking all the money he sent her.  Additionally "she" got pregnant with another man's baby.  


	b.  The situation got the best of him and he left the Army.  He was hurt, and not knowing what else he could do, he returned home to North Carolina.  When he returned home his children were sleeping on the floor, which made him mad.  He gave her enough money to buy his children beds and give them a place to stay, then he left to find work in New Haven, CT so that he could take care of his 4 children.  He did not know anyone in New Haven so he slept in abandoned homes and went without food, but he was still looking for work every day.  After about 2 months he finally found a paying job.  He sent all the money he earned to his kids and had nothing to live on himself.  He had to borrow money from his boss at least once a week.  However, this employment only lasted for approximately 3 months and he ended up going back to Fort Eustis, VA in an attempt to resume his military duties.

	c.  He paid for his mistakes but he is not a failure.  He tried to do the right thing but the Army told him he was going to receive a dishonorable discharge which would be upgraded to an honorable discharge within 1 year.  He agreed to the discharge because he thought it would be upgraded to honorable within 
1 year, but this never happened.

	d.  He has paid child support since 1975 and he is still paying now.  He is sorry he did not stay in the Army but he has been physically and mentally worn down.  He has also been to the doctor for back pain and anxiety.  He is currently 64 years old, disabled, and he needs help.  

3.  The applicant provides:

* a request pertaining to military tecords, dated 29 September 2014
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 21 May 2015
* an undated, self-authored statement
* a Social Security Administration (SSA) Form 1099 (Social Security Benefit Statement), for benefits received in 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.  On 23 May 1979, the applicant enlisted in the Connecticut Army National Guard (CTARNG) in New Haven, CT, and entered active duty on 23 August 1979.

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) and numerous   DA Forms 4187 (Personnel Action), dated between 10 December 1979 and      22 October 1980, show he was:

* absent without leave (AWOL) from on or about 5 to 18 December 1979
* AWOL and dropped from the rolls (DFR) of the Army as a deserter from on or about 7 January to 11 March 1980
* AWOL from on or about 2 June to 1 July 1980
* DFR of the Army from on or about 2 to 29 July 1980
* AWOL from on or about 9 to 21 October 1980

4.  His record contains a DD Form 458 (Charge Sheet), dated 17 January 1980, which shows he was charged with being AWOL from on or about 
5 to 18 December 1979 and from on or about 7 January 1980 to an unspecified date.

5.  Orders Number 17-1, issued by the CTARNG, dated 1 February 1980, discharged him from the ARNG under honorable conditions and assigned him to the U.S. Army Reserve, Company V, 2nd Battalion, U.S. Army Quartermaster School Brigade, Fort Lee, VA, effective 3 January 1980.

6.  He accepted nonjudicial punishment (NJP) under the provisions of Article      15 of the Uniform Code of Military Justice (UCMJ) on 21 April 1980 for being AWOL from on or about 5 to 19 December 1979, and from on or about 7 January to 12 March 1980.

7.  His record contains several counseling forms, dated between 18 and 30 April 1980 that show:  

   a.  On 18 April 1980, the applicant and his counselor agreed the reason he received a low grade in his advanced individual training (AIT) course was his failure to apply himself.  The applicant indicated that he studied outside of the class alone for about 4 hours each day in the bay area and he was interrupted by noise.  The applicant also indicated that he had not requested assistance from his instructors and he did not have any personal problems impacting his performance.  

   	(1)  The applicant’s counselor also stated the applicant scored a 
58 percent (%) on his examination, which showed a lack of the motivation needed to complete the course.  The counselor stated the applicant had the education level necessary to complete the course but he was not applying himself.  

	     (2)  The applicant was counseled on paying attention in class, that he should study with others, motivate himself, and ask questions when things were unclear.

	b.  On 21 April 1980, the applicant stated his low grades were due to his personal problems.  The applicant was counseled about setting proper priorities taking care of his personal problems on his own time and he should concentrate on his studies, or take leave.  The applicant indicated he studied outside of class alone for 3 or 4 hours each day in the bay area and he was interrupted by noise. He also indicated he had not requested assistance from his instructors and had personal problems impacting his performance (he was having marriage problems and was trying to get a divorce).  

		(1)  The counselor stated the applicant had been enrolled in his AIT course twice.  The first time he was enrolled he only took one test and scored a 32%.  He then went AWOL prior to retest and was dropped from the course.  He had taken a test on the same subject twice and failed the test both times.  The applicant claimed all of this, including the problems he had during his first attempt at the course, was due to his personal problems.  The applicant’s counselor felt he repeatedly showed a lack of motivation and inability to handle his personal problems.  The counselor also stated the applicant had been unable to straighten out his personal problems during the past 6 months and it was doubtful he would be able to do so.  In view of the circumstances, the counselor recommended the applicant be dropped from the course and considered for possible elimination from the military.  The lower score on his retest (58% to 40%) reflected his lack of interest and motivation.

		(2)  The counselor provided the applicant with the guidance to motivate himself and show more interest in military assigned tasks.

	c.  On 31 April 1980, the applicant stated he could not get himself together and on the right track to complete the course.  The applicant indicated that he studied outside of class alone in the bay area and he was interrupted by noise.  He also indicated he had not requested assistance from his instructors and did have any personal problems impacting his performance (he was having marital problems).  The counselor stated he felt the applicant's test scores showed no interest, motivation or study time were involved due to the fact that he scored lower on the retest than the initial test he failed even though these tests were the same.  The counselor stated the applicant's educational level was more than adequate for him to pass the course, but he recommended the applicant be dropped from the course.

8.  His record contains several Standard Forms (SF) 600 (Chronological Record of Medical Care), dated between 12 March and 30 April 1980, which show:

	a.  On 12 March 1980, he was seen for complaints of voiding blood (blood in his urine) and low back pain due to an injury in October while on bivouac.  He was diagnosed with a urinary tract infection (UTI) and treated with amoxicillin.

	b.  On 23 March 1980, he was seen again for complaints of lower back pain.  Medical notes indicate the medication he had been prescribed for the UTI provided no relief.  He was diagnosed with gonococcal urethritis (gonorrhea) and he appears to have been prescribed penicillin.

	c.  On 2 April 1980, he was seen again for complaints of pain in his back (toward the middle of his back), legs, and low groin area.  The applicant indicated the pain was more like an ache.  He was diagnosed with mild pain/strain.

	d.  On 30 April 1980, he was seen for complaints of back and low abdominal pain.  He was diagnosed with a muscle strain.

9.  His record contains an SF 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), both dated 2 May 1980.  The examining physician indicated the applicant had pes planus (flat feet), tinea versicolor on his back and chest, and tenderness in the lower back lumbar area due to muscle spasms.  However, he was still considered medically qualified for release from active duty.

10.  His record contains a letter dated 10 June 1980 and a memorandum dated 13 June 1980, which were both issued by the U.S. Army Transportation School, Fort Eustis, VA.  These documents show he attended the traffic management coordinator course from 13 May to 10 June 1980; however, he did not successfully complete the course.  He was relieved from the course because he had been AWOL since 2 June 1980.  His removal from the course was effective 10 June 1980.

11.  His record contains a DD Form 458, dated 4 August 1980, which shows he was charged with being AWOL from on or about 2 June to 30 July 1980.

12.  Summary Court-Martial Orders Number 16, issued by the Transportation School Brigade, U.S. Army Transportation School, Fort Eustis, VA, dated 29 August 1980, show he was convicted according to his guilty plea of being AWOL from on or about 2 June to 30 July 1980.  

13.  On 30 October 1980, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33(b), because of misconduct due to an established pattern of shirking.  The applicant’s commander informed him of his right to present his case before a board of officers, submit statements on his own behalf, to be represented by counsel, to waive any of his rights, and to request his case be presented before a board of officers.

14.  On 30 October 1980, his immediate commander submitted a chapter 
14 rehabilitation waiver and request for discharge on the basis that the applicant had been on active duty since August 1979 and had, in that time, established a pattern of shirking that included being AWOL in excess of 130 days.  

15.  On 31 October 1980, the applicant acknowledged receipt of his commander's notification and consulted with legal counsel.  He acknowledged that he had been advised by legal counsel of the basis for the contemplated separation action for misconduct under the provisions of Army Regulation 
635-200, chapter 14 and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  He waived consideration of his case before a board of officers and a personal appearance before a board of officers, indicated he intended to submit statements on his own behalf (not included), and waived representation by counsel.  He also acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if he was issued a general or under other than honorable conditions discharge, and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  Additionally, he signed a statement indicating that he had been advised by counsel of the basis for his contemplated separation and its effects, the rights available to him, and the effects of a waiver of his rights.  The applicant personally made the choices indicated.  

16.  On 13 November 1980, the commander's request for a rehabilitation waiver was approved.

17.  On 12 December 1980, the discharge approval authority directed the applicant be discharged for misconduct under the provisions of Army Regulation 635-200, Section V, paragraph 14-33b(2) and that he be issued an under other than honorable conditions discharge certificate.  

18.  His DD Form 214 shows he was discharged on 17 December 1980 after completing 10 months and 25 days of net active service with 150 days of lost time.  Additionally:

	a.  item 24 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his characterization of service as under other than honorable conditions; and

	b.  item 28 of his DD Form 214 shows he was discharged for misconduct – an established pattern of shirking.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the physical disability evaluation system (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 office, grade, rank, or rating.  It provides for medical evaluation boards (MEB) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  

	a.  If an 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.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It 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.

	b.  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 member reasonably may be expected to perform because of his office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.
20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Specifically, section V, paragraph 14-33b(2) of this chapter states members are subject to separation under the provisions of this section for patterns of misconduct including an established pattern for shirking.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could have directed a general discharge if such was merited by the Soldier’s overall record.  

	b.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of misconduct includes a history of counseling for failing to apply himself, NJP, a court-martial conviction, and four instances of being AWOL amounting to 150 days of lost time.  He received an administrative discharge under the provisions of Army Regulation 635-200, paragraph 
14-33b(2), for misconduct (established pattern of shirking).  

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Furthermore, the evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  


3.  The applicant is not authorized a medical disability discharge or a medical disability retirement because he was considered medically fit for military service and there is no evidence a medical condition contributed to the misconduct that preceded his discharge.  Furthermore, he received a pre-separation medical evaluation that noted he was medically qualified for separation.  

4.  Additionally, there are no records to show he suffered from or was diagnosed with or was treated for an illness or injury that merited entry into the PDES.

5.  Based on the foregoing, there is insufficient evidence to support granting the 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)                                         AR20140018316





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ABCMR Record of Proceedings (cont)                                         AR20140018316



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