BOARD DATE:	 1 September 2015 

		DOCKET NUMBER:  AR20150000582 


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, in effect, that his character and reason for discharge be upgraded from an under other than honorable conditions (UOTHC) in lieu of trial by court-martial discharge to an honorable discharge due to physical disability.

2.  The applicant states he was hit in the head with a steel pot (helmet) while on night maneuvers in Europe.  Following the incident he started having bad headaches, memory loss, anxiety, and depression.  Other than the initial medical treatment, he received no help for his medical problems.  His problems led to his UOTHC discharge, his divorce, and his becoming homeless for a period of time.

3.  The applicant provides no supporting documentation.

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 Army National Guard on 1 March 1972.  He was involuntarily ordered to active duty and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  He enlisted in the Regular Army on 15 May 1975.

3.  He served in Germany from 10 October 1976 through 11 October 1979.  He was promoted to sergeant on 9 November 1977.

4.  The available medical records show the applicant was treated on –

* 16 August 1977 for a laceration over the left eye when he was hit with a steel helmet, no follow-up care is recorded
* 4 August 1978 for a superficial laceration to the head while playing soccer, no follow-up care is recorded 

5.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 25 April 1980 for 126 days (6 December 1979 through 10 April 1980) absence without leave (AWOL).  The AWOL ended as a result of a civilian arrest.  He reported that this period of AWOL was due to his wife taking their children and leaving.

6.  The applicant was AWOL from 2 June 1980 through 24 July 1980.  This period of AWOL was terminated by civilian arrest as an accessory to burglary.  He was found guilty of the civilian charge and incarcerated.  He returned to military control on or about 1 October 1980 and court-martial charges were preferred for the AWOL.

7.  He was afforded a Mental Health Evaluation on 8 October 1980.  No abnormalities were found; his memory was good.  He was found to be mentally responsible, to be able to tell right from wrong, and to be able to understand and participate in any administrative actions deemed appropriate.

8.  Also on 8 October 1980, after consulting with counsel and being advised of this rights and options, the applicant submitted a formal request under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge.  He acknowledged that if he was found guilty of the charges or lesser included charges that he could receive a UOTHC discharge and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

9.  In his personal statement, the applicant stated he went AWOL due to family-related personal problems and that if he were not discharged he would go AWOL again.

10.  On 3 November 1980, the general court-martial convening authority approved the separation request and directed the applicant be reduced to the lowest enlisted grade and separated with a UOTHC discharge.

11.  On 14 November 1980, the applicant was discharged UOTHC.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 8 years, 5 months, and 16 days of Regular Army and Reserve service with lost time from "791206-800409 800602-800724."

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. 

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  A UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating.  Separation or retirement by reason of disability requires processing through the PDES.  The regulation states the mere presence of an 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to show he was discharged for physical disability. 

2.  The applicant sustained minor head injuries on two occasions:  16 August 1977, when he was hit with a steel helmet, and 4 August 1978, when he was hit with a soccer ball.  There is no indication that the applicant had any follow-up complaints or treatment for either of these head injuries or that either injury impacted his duty performance.

3.  The results of his mental status evaluation showed no abnormalities and specifically showed that his memory was good.  Service medical records do not indicate any medical condition incurred while he was entitled to receive basic pay that was so severe as to render the applicant medically unfit for retention on active duty. 

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  

5.  The evidence of record fully supports the type of discharge the applicant received.  There is no evidentiary basis upon which to grant 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)                                         AR20150000582



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ABCMR Record of Proceedings (cont)                                         AR20150000582



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