BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140021468 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, that during his basic combat training (BCT) he fractured his femur and was initially diagnosed as having nothing wrong.  He went on to complete his military duties to the best of his abilities and did all his commanders asked him to do.  After several weeks he was called back to the hospital and told that he had a broken femur.  He stayed in the hospital for a month and was restricted from prolonged standing or walking for 6 months.  His commander tried to recycle him back through BCT but no other troop would accept him.  He was told to go find a bed and lay in it for 6 months, so he went home.  Although he returned after 4 months, he was considered to have been absent without leave (AWOL).

3.  He was assigned an attorney upon his return and instructed verbatim what he should write in his letter.  His attorney strongly recommended that he did not return to face his charges because he could likely be sentenced to confinement at Fort Leavenworth.  He was young and vulnerable, so he returned home again and stayed for 3 to 4 months.  Upon his return he was placed in the stockade for 6 weeks but was given a 1-week pass after he inquired as to when he would be discharged.  He again went home returning 1 week later only to find out that he had been discharged from the service the day prior. 


4.  He contends that his other than honorable conditions discharge was both inequitable and improper because he was injured while in BCT and upon his discharge from the hospital there was no one willing to help him with his rehabilitation.  His subsequent AWOLs were based solely on bad information from other authorities and military personnel.

5.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 8 February 1971, the applicant enlisted in the Regular Army.  He failed to complete his initial entry training.

3.  His medical records show that he was admitted to the U.S. Army Hospital, Fort Jackson, SC, on 17 March 1971.  He was diagnosed with a stress fracture of his right femoral neck.  On 28 March 1971, he was further diagnosed with an upper respiratory infection.  

4.  On or about 9 April 1971, the applicant was discharged from the hospital and placed on temporary restricted duty for 60 days due to a painful right hip.

5.  His record contains two charge sheets issued by the Special Processing Company, Fort Knox, KY, which show he was charged with:

* being AWOL from 16 April to 28 September 1971, on 20 October 1971
* being AWOL from1 November 1971 to 12 February 1972 on 7 March 1972 

6.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 
(Personnel Separations - Enlisted Personnel), chapter 10.
	a.  He acknowledged that:

* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veterans Administration (VA)
* 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 an undesirable discharge

	b.  He indicated he would submit a statement in his own behalf.

7.  The applicant’s record contains a statement wherein he provided explanations for his unauthorized absences and he requested to be discharged in order to take care of his family.  He stated that he went AWOL the first time because his commander denied him leave in order to go see his wife and new born baby.  He went AWOL the second time because his wife was filing for a divorce and he needed to talk to her. 

8.  On 21 March 1972, the separation authority approved his request and directed that he be issued an Undesirable Discharge Certificate.  On 29 March 1972, he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  He completed 4 months and 29 days of total active service with 268 days of lost time.

9.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  Paragraph 3-7a provides that 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.

	c.  Paragraph 3-7b provides that 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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  The record shows the applicant was diagnosed with a stress fracture and a respiratory infection while in BCT.  However, there is no evidence that his unit was unwilling to assist with his rehabilitation.  By his own admission, his unauthorized absences where based on the need to be with his wife and child, and to prevent a divorce.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

4.  Based on his extensive periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his discharge.

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)                                         AR20140021468





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ABCMR Record of Proceedings (cont)                                         AR20140021468



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