IN THE CASE OF: BOARD DATE: 20 NOVEMBER 2008 DOCKET NUMBER: AR20080011353 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 that his discharge under other than honorable conditions be changed to a medical discharge. 2. The applicant essentially states he was whole when he enlisted, but was discharged under other than honorable conditions when he should have been medically discharged. 3. The applicant provides a multitude of evidence which has been indexed in a separate three-page document in support of this application. 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 military records are not available for review. Additionally, a search for his official military personnel file yielded no record for him. This case is being considered using the records provided by the applicant. 3. The available records show that the applicant enlisted in the Regular Army on 15 February 1989. He completed initial entry training and was awarded military occupational specialty 12B (Combat Engineer). After completing airborne training, the applicant departed for a tour in Italy on 1 August 1989. 4. Although the official facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not available for review, the applicant provided a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). This document shows that the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial). This document also shows that he was discharged under other than honorable conditions. 5. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 6. The applicant stated that he was whole when he enlisted, but was discharged under other than honorable conditions when he should have been medically discharged. 7. Army Regulation 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 [bad conduct or dishonorable] 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 discharge under other than honorable conditions is normally considered appropriate. 8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. This regulation has consistently provided that a Soldier may not be referred for, or continue, disability processing when they are charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or a punitive discharge. 9. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge under other than honorable conditions should be changed to a medical discharge. 2. The fact that the applicant provided a multitude of medical documents in support of his claim that he should have been medically discharged was noted. However, by virtue of charges being preferred against him for an offense chargeable under the UCMJ which could have resulted in a punitive discharge, the applicant was not entitled to disability processing. 3. Although the official facts and circumstances pertaining to the applicant’s discharge were not available for review, it is clear that the applicant was charged with the commission of an offense or offenses punishable under the UCMJ with a punitive discharge. It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial. As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case. As a result, the applicant's discharge accurately reflects his overall record of service. 4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 5. In view of the foregoing, there is no basis for changing the applicant's discharge under other than honorable conditions to a medical discharge. There is also no basis for upgrading his discharge to an honorable or general 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. _________XXX________________ 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) AR20080011353 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080011353 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1