RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 February 2004                   
	DOCKET NUMBER:   AR2003089432

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Paul Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his discharge be upgraded to General Under Honorable Conditions.

2.  The applicant states, in effect, that his medical problem (bilateral avascular necrosis of the hips) initially began in the service with physical training (PT) over a period 6 years.  It continued to get worse as time went on.  He is unable to work 80% of the time because of his condition.  He indicates a hip replacement is inevitable.

3.  The applicant provides medical documents from Johns Hopkins Medicine and Johns Hopkins University Arthritis Surgery Division, both dated 20 June 2001.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 2 April 1981.  The application submitted in this case is dated 3 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  After successfully completing an initial enlistment during which he received a Good Conduct Medal and several letters of appreciation and commendation, the applicant reenlisted on 23 April 1979 for a period of 6 years for training in military occupational specialty (MOS) 64C10, Motor Transport Operator.

4.  The applicant successfully completed his MOS training and was subsequently assigned to the 126th Transportation Company, Fort Bragg, North Carolina on 5 November 1979.

5.  The applicant's records show that he was absent without leave (AWOL) from his unit for 2 days from 8-9 July 1980.  There is no indication that he was punished for this offense.  The record also shows that he departed his unit in an AWOL status on 8 August 1980 and returned to military control at the Personnel Control Facility, Fort Dix, New Jersey on 17 February 1981.

6.  On 20 February 1981, the applicant received a mental status evaluation.  Comments indicate he was absent without leave (AWOL) for 6 months and he did not like the Army.  On 2 March 1981, he stated in an interview with the Personnel Control Facility staff that he went AWOL because of the lack of proficiency at his unit at Fort Bragg.  He had personal problems and no one wanted to listen to him.  Additionally, he had begun drinking heavily and requested separation from the Army, but he was told he was too good a Soldier to be released.  So he figured the only way he could get out was to mess up.  He further indicated he turned himself in to get it over with so he could go to work.  The statement indicates that he had no desire to continue on active duty and wanted out of the Army.  There is no evidence he received a separation physical in the available records.

7.  On 11 March 1981, the applicant was charged with AWOL for the period 8 August 1980 through 17 February 1981.

8.  On an unknown date, the applicant requested separation under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of trial by court-martial.  He indicated he had consulted with counsel and further declined to submit a statement his own behalf.  His commander and intermediate commander both recommended approval with the issuance of an under other than honorable conditions discharge certificate.

9.  On 18 March 1981, the General Court-Martial Convening Authority approved the applicant's request and directed separation with an under other than honorable conditions discharge.

10.  On 2 April 1981, the applicant was separated with an under other than honorable conditions discharge.  He had 1 year, 4 months, and 28 days of active Federal creditable service for the enlistment period under review.  He had 196 days of lost time.

11.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's available records do not show that he had a medical problem with his hips.  His medical records make no mention of any such condition, treatment thereof, or show any physical profile.  Additionally, there is not a copy of any separation physical showing any medical condition.

2.  The applicant's interview statement at the Personnel Control Facility makes no mention of any medical problems as being the reason for his AWOL.  He cites personal reasons and a dislike of the military as justification for his AWOL.

3.  If the applicant had a medical problem, he could have been processed through medical channels for a possible medical separation.  There is no evidence he availed himself of this remedy for a separation in lieu of going AWOL.

4.  The fact that the applicant now has a serious medical problem at this late date is not a basis for upgrading his discharge.  While the Board has sympathy for the applicant's medical condition, it does not upgrade discharges solely for the basis of receiving medical benefits.  There is no error or injustice in the characterization of his discharge.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 2 April 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 April 1984.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__sac___  __clg___  __rks___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

			Samuel A. Crumpler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089432	
SUFFIX		
RECON		
DATE BOARDED	20040203	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810402	
DISCHARGE AUTHORITY	AR 635-200, Chap 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7100	
2.		
3.		
4.		
5.		
6.