IN THE CASE OF:	  

		BOARD DATE:	 21 July 2015   

		DOCKET NUMBER:  AR20140021536 


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 he had health issues.  He tried to tell of his medical condition, but no one would listen.  He went to several doctors and hospitals to take care of his problems. 

3.  The applicant provides: 

* Letter from the National Personnel Records Center
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 4 (Enlistment or Reenlistment Agreement, Armed Forces of the United States)
* DA Form 2A (Personnel Qualification Record-Part I)
* DA Form 2-1 (Personnel Qualification Record-Part II) 
* Immunization Record
* Separation Standard Form 89 (Report of Medical Examination)
* Separation Standard Form 88 (Report of Medical History)
* Dental Record
* Medical Statement from Dr. Banfield
* Two statements of support 
* Post service medical records from Olmsted Medical Center
* Medical statement from Dr. Link
* Orthopedic Trauma Hospital Service Dismissal Summary
* Multiple photographs of his foot and toes
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's records show he enlisted in the Regular Army on 28 June 1978 and he held military occupational specialty (MOS) 64C (Motor Transportation Operator). 

3.  Following completion of MOS training, he was issued permanent change of station assignment instructions to the 21st Replacement Detachment in Germany with a report date of 23 October 1978.  He was issued a port call to travel from Charleston Air Force Base, SC, to Frankfurt, Germany, on 22 October 1978, at 2130 hours.  

4.  On 9 November 1978, he was reported in an absent without leave (AWOL) status and on 8 December 1978, he was dropped from the rolls as a deserter.  He surrendered to military authorities in Rochester, MN, and he was turned over to the Personnel Control Facility, Fort Knox, KY for administrative action on
22 January 1979. 

5.  On 29 January 1979, court-martial charges were preferred against him for one specification of being AWOL from 9 November 1978 to 22 January 1979. 

6.  On 30 January 1979, he underwent a separation physical.  He was found medically qualified for separation. 

7.  On 31 January 1979, he consulted with legal counsel and he was advised 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. Following consultation with legal counsel, he 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.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service
* he elected to submit a statement in his own behalf 

8.  In his statement, the applicant indicated that he joined the Army because he wanted to learn a skill and get an education.  He felt he would not do the Army any good with this trouble.  He had a fractured skill (i.e., skull) when he was young and ever since then, he has been having “spills.”  He consulted with the doctors and they told him he would grow out of it eventually.  He also went through a window 2 years earlier and since then he had been having trouble with his elbow.  The doctors told him he would have trouble with it for the rest of his life.  

9.  On 13 February 8 July 1981, the applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other tan honorable conditions discharge. 

10.  On 21 February 1979, the separation authority approved his request for 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, and directed the applicant receive an under other than honorable conditions discharge with reduction to the lowest enlisted grade.   The applicant was discharged on 28 June 1978. 

11.  His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 6 months and 6 days of active service during this period and he had 74 days of lost time.

12.  On 12 January 1981, the Army Discharge Review Board found that his discharge was proper and equitable.  The ADRB denied his petition for an upgrade of his discharge. 

13.  He provides: 

	a.  His service immunization and dental records 

	b.  Medical statement from Dr. Banfield detailing the applicant's medical history and/or health issues from November 1978 to August 1979.  

	c.  A statement from his sister who states he has been fighting diabetes for years and it has caused him to have amputations, heart surgery, eye surgery, and other complications.  He also had migraines and has had a seizure.  His health is not good. 

	d.  A statement from an individual named Ramona who states the applicant has health issues.  He had heart surgery and numerous heart attacks.  He is also diabetic with high blood pressure and multiple other health issues. 

	e.  Prior to service and post service medical history from the Olmsted Medical Center, Rochester, MN.

	f.  Medical statement from Dr. Link who states he has been involved in the applicant's neurosurgical care and that he has a significant past medical history of diabetes which led to amputations, coronary bypass, and a history of headaches.  He also has a tumor which was removed in February 2014.  

	g.  Orthopedic Trauma Hospital Service Dismissal Summary that shows his medical challenges with diabetes. 

	h.  Multiple photographs of his foot and toes. 

14.  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.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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 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 applicant's records show he 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.  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.

2.  With his application for voluntary discharge, the applicant submitted a statement wherein he acknowledged he fractured his skull when he was young he went through a window 2 years earlier and that he had problems since that time.  Doctors told him he would have trouble with his elbow the rest of his life.  However, there is no evidence that either preexisting condition caused him to go AWOL.  

3.  Likewise, there is no evidence the applicant was diagnosed with diabetes when he was on active duty or that diabetes contributed to him going AWOL.  

4.  The evidence of record clearly shows the applicant was advised of his rights by legal counsel and he indicated that he knew the implications of his decision.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading 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)                                         AR20140021536



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ABCMR Record of Proceedings (cont)                                         AR20140021536



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