IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150006156 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 military records by upgrading his undesirable discharge (UD) to honorable. 2. The applicant states his medical condition caused his UD. He explains that while in the Republic of Vietnam he got sick. He was short of breath. He could not breathe or walk. He reported his condition to his platoon leader. His company commander advised him that he needed to stop smoking. His shortness of breath continued even after trying to take care of the problem. He was hospitalized. X-rays and scope showed half of his lung was paralyzed and had to be removed. He was evacuated to Japan for medical treatment. His surgery had to be done in the United States. He spent about a month at Valley Forge General Hospital (VFGH). Fluid was drawn from his lungs. No surgery was performed and he was returned to duty at Fort Hood, Texas. He was in a lot of pain. That is when he went absent without leave (AWOL) to get medical treatment. To this day, he still has pain. He is rotten on the inside. When he takes deep breaths he smells like a dead animal. He has shortness of breath. He is filing a claim with the Department of Veterans Affairs (VA). 3. The applicant provides copies of his service medical records (approximately 100 pages). 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. On 7 June 1968, the applicant enlisted in the Regular Army. He completed his initial entry training as a light weapons infantryman. 3. On 11 February 1970, the applicant was convicted at a Special Court-Martial for AWOL from on or about 29 September 1969 to 7 January 1970 (about 101 days). He was reduced to private, pay grade E-1 and forfeited $40.00 pay per month for 5 months. 4. On or about 1 September 1970, the applicant was charged with violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for AWOL from 6 April to 28 August 1970 (about 143 days). 5. The discharge packet is missing from his military records. However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 13 November 1970, under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10, for the good of the service. His service was characterized as under conditions other than honorable. He completed 2 years and 13 days of creditable active duty and had about 244 days of lost time due to AWOL. 6. On 9 June 1980, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB determined that his discharge was proper and equitable and denied his request. 7. In the processing of this case, an advisory opinion was obtained from the Office of the Surgeon General. After a thorough review of the applicant’s service medical records, it was determined that he had received a thorough evaluation which included bronchoscopy both in Japan and at VFGH. There was no indication at either hospital that he was being considered for extensive surgery. His care was thorough and complete. There is no evidence of inadequate care for his condition. The medical care received should not be considered contributory to his actions. 8. On 7 January 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. 9. Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation 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 UD was normally considered appropriate. b. Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization 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. c. 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 contends that his military records should be corrected by upgrading his UD to honorable because his medical condition caused him to be AWOL to get medical treatment. 2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 3. The applicant has not provided sufficient documentary evidence showing that he was unjustly denied due process regarding his undesirable discharge. Further, there is no convincing documentary evidence showing that his medical condition was the proximate cause of his misconduct. 4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge. 5. The applicant's desire to obtain VA medical benefits does not provide a valid justification to upgrade his discharge. 6. In view of the foregoing, the applicant's request should be denied. 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) AR20130021516 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006156 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1