IN THE CASE OF:	   

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150004106 


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 records to show that he was medically discharged vice discharged by reason of conduct triable by court-martial.

2.  The applicant states he believes he should have received a medical discharge.  When he came into this world, he had flat feet.  He started having problems with his feet when he joined the Army.  He had to stand in formation for long periods of time and run in steel-toe boots.  He went to the doctor and was given inserts for his boots but they made things worse.  He went through that until he couldn't take the pain anymore.  He went to Fort Knox, KY, to get out of the service.  His feet hurt him then and now.  He also has a hearing problem from loud gunfire while in the service and he needs some help.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 that in conjunction with his enlistment in the Regular Army (RA) he underwent a physical on 8 December 1978.  On his Standard Form 88 (Report of Medical Examination) the examining doctor noted in item 36 (Feet) of the form that the applicant had pes planus (flat feet) that was not considered disabling.  He was found medically qualified for enlistment.

3.  On 9 January 1979, he enlisted in the RA.  On 3 August 1979, he was assigned to the 3rd Battalion, 7th Cavalry Regiment, Germany.

4.  On 15 January 1980, he was reported in an absent without leave (AWOL) status from his assigned unit and he was subsequently dropped from Army rolls as a deserter.  

5.  On 3 November 1980, he surrendered to military authorities at Fort Knox, KY.  He was assigned to the U.S. Army Personnel Control Facility, Fort Knox.  On 3 November 1980, he completed a DA Form 2496-1 (Disposition Form) wherein he acknowledged he had been counselled on the requirements for completion of a medical evaluation prior to separation.  He checked the block on the form to show that he did not desire to undergo a medical examination. 

6.  On 5 November 1980, he underwent a mental evaluation.  The DA Form 3822 (Report of Mental Status Evaluation), dated 5 November 1980, shows the examining doctor found his behavior was normal, he was fully alert and oriented, his thinking process was clear, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

7. On 5 November 1980, court-martial charges were preferred against him for being AWOL from 15 January to 3 November 1980.

8.  On 6 November 1980, 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 of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, he acknowledged he understood if the discharge request was approved, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

10.  In an undated statement he submitted on his own behalf, he stated he entered the Army not knowing what it was all about.  He tried as hard as could to make a go of it.  The reason he didn't make it was because he had too many problems.  He had flat feet that hurt when he walked and he had a back problem that happened at home when he tried to lift too much weight at one time.  On top of that, his wife was so ill that her hair was coming out in bunches.

11.  On 6 November 1980, he was placed on excess leave pending the processing of his request for a discharge.

12.  On 3 December 1980, his immediate and senior commanders recommended approval of his request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

13.  On 11 December 1980, the separation authority approved his request for a discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 13 February 1981, he was discharged accordingly.

14.  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 1 year, 4 months, and 17 days of net active service of which 100 days (3 months and 10 days) was excess leave and he had 262 days (or 8 months and 19 days) of lost time due to being AWOL.

15.  His available records show that he had flat feet when he enlisted; however, there is no evidence that he was diagnosed with a foot problem or any other medical condition while serving on active duty to include flat feet that prevented him from performing his duties and would have required referral to a medical evaluation board (MEB).

16.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would require referral to an MEB.

17.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  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 included 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.  An under other than honorable conditions discharge was normally considered appropriate.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEBs 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 qualification for retention based on the criteria in Army Regulation
40-501, chapter 3.

20.  Army Regulation 635-40 further provides that 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 or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms 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. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  
3.  Even though he had flat feet, the evidence of record does not show and the applicant has not provided any evidence that shows he was ever diagnosed with or treated for any foot problems or other medical conditions while serving on active duty that prevented him from performing his duties and would have required referral to an MEB.  There is no evidence in the available records that shows he ever received a permanent profile rating of "3" that would have required referral to an MEB.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  He did not meet the criteria for a medical 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)                                         AR20150004106



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ABCMR Record of Proceedings (cont)                                         AR20150004106



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