IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150007847 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 under other than honorable conditions discharge be upgraded to a general discharge. 2. The applicant states his discharge is inequitable because: * he was only 19 years of age at the time * he was in motor vehicle accident in Germany caused by a drunk driver and suffered multiple, near fatal injuries that he still feels today, some 27 years later * he was medically evacuated and spent 6 months at Walter Reed Army Hospital and Ireland Army Hospital (Fort Knox) * a military doctor recommended a 65 percent medical disability discharge but his senior commander rejected this recommendation and he was returned to duty in Germany * he had two eye surgeries after his discharge and he still has eye problems * he had an untreated break to his elbow * he suffers from muscle spasms * he could not pass his Army Physical Fitness Test (APFT) and was forced to wear glasses * his commander was threatening him with jail time if he did not pass the APFT and resume normal duty * his first sergeant told him to take leave and return to the United States, wait 41 days, and then turn himself in after his leave expired to Fort Knox * his first sergeant told him he would get better medical treatment for his injuries and that Fort Knox personnel would be sympathetic to his issues * upon turning himself in at Fort Knox, the military police detained him putting him in a minimum security facility; he spent his days picking up trash * after 3 weeks, he was allowed to see an attorney who asked him to sign away any prospect for a medical discharge in exchange for an honorable discharge * he signed the papers but later realized he received an under other than honorable conditions discharge * his military occupational specialty (MOS) of 15E (Pershing II Missile Crewman) was defunct upon signing a treaty with the Soviet Union * Soldiers were forced to reclassify into the infantry or artillery and those who did not faced obstacles in meeting astronomical promotion point cut of scores * he feels he was an expendable Soldier as the Army began a draw-down * he bled for his country, not on the battlefield but on duty; he was permanently wounded mentally and physically * he had no help from the Department of Veterans Affairs (VA) * he lived aimlessly for about 10 years but turned his life around and became a preacher after getting an advanced education * he was a good Soldier with no disciplinary issues; he had no record of misconduct and he was promoted on time * he does not expect medical benefits or pay, he just wants to stand tall as a veteran with an honorable discharge that he was promised and feels he earned 3. The applicant provides: * newspaper article from the "Stars and Stripes" * checklist for administrative discharge actions * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 458 (Charge Sheet) 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 was born in April 1969 and enlisted in the Regular Army at 18 years and 2 month of age on 19 June 1987. He held MOS 15E. He was promoted to private first class/E-3 on 2 December 1987. 3. He served in Germany from 19 December 1987 to 15 August 1988. He was assigned to the 74th Field Artillery Detachment. 4. On 20 May 1988, he was admitted to the Ludwig University Hospital in Munich, Germany. He was a passenger in a military vehicle when it collided with an oncoming vehicle. He suffered cranio-cerebral trauma with primary unconsciousness, contusion of facial skull with fracture of ethmoid cells and bleeding into the maxillary sinus (right), occipital scalp injury and a contusion to his right lung and shoulder. He underwent treatment, evaluations, and examinations and he was discharged from the German hospital on 31 May 1988 to the military hospital. 5. From Germany he was medically transferred to Walter Reed Army Medical Center and then to Ireland Hospital at Fort Knox, KY, for further treatment, convalescence and rest. Upon completion of stateside treatment, he was cleared for duty and returned to his parent unit in Germany on or about 1 February 1989. He was promoted to specialist four/E-4 on 1 September 1989. 6. On 15 September 1989, at 20 years and 6 months of age, he departed his unit in an absent without leave (AWOL) status and on 15 October 1989, he was dropped from the rolls as a deserter. He surrendered to military authorities at Fort Knox on 31 October 1989. 7. On 31 October 1989 he was attached to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, pending disposition of his case. 8. On 31 October 1989, as charges were pending against him, he signed a statement indicating he did not desire a separation medical examination. He acknowledged he understood he was not required to undergo one but if he elected to do so, his medical records would be reviewed by a physician at the appropriate medical treatment facility and he would be scheduled for an examination based on the review. 9. On 8 November 1989 court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of military Justice (UCMJ), for one specification of AWOL from 15 September to 30 October 1989. 10. On 8 November 1989, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the 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. In his request for discharge the applicant indicated: a. he was making this request of his own free will and had not been subjected to any coercion by any person; b. he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge; c. he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law; d. he stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service"; and e. he elected not to submit a statement on his own behalf. 11. On 28 December 1989 his company and battalion commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge. 12. Throughout the separation process, the commander submitted a checklist for administrative discharge actions. He chronicled the applicant's enlistment date, promotions, length of service, length of AWOL, and awards and decorations. He also checked the statement that "there were no medical or other data meriting consideration [for a] medical evaluation." 13. On 4 January 1990, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 14 March 1990. 14. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge. This form further confirms he completed a total of 2 years, 7 months, and 10 days of creditable active military service and he had 46 days of lost time. 15. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 16. 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 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. a. Paragraph 3-7a, 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. b. Paragraph 3-7b, 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’s record shows he was charged with the commission of offenses 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. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 2. With respect to his arguments: a. The applicant was 18 years of age at the time of his enlistment and 20 years of age at the time of his offense. However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age. b. It is true that the applicant was in a motor vehicle accident. He was admitted to the hospital in Munich for initial treatment and then treated/evaluated at Walter Reed Army Medical Center as well as Ireland Community Hospital. When he was medically cleared and released, he returned to his unit in Germany in February 1989. Though he states he could not perform the APFT, there is no evidence in his record that he could not meet the physical fitness standards required to participate in physical fitness training. There is no record of a medical profile that would have limited his participation in the APFT. He went AWOL in September 1989. Nothing in his records shows his AWOL was related to the accident or lingering medical problems associated with the accident. Likewise, nothing in the records supports his contention that he was offered a medical discharge. c. Upon return from AWOL, he signed a statement indicating he did not desire a separation medical examination. He acknowledged he understood he was not required to undergo one but if he elected to do so, his medical records would be reviewed by a physician at the appropriate medical treatment facility and he would be scheduled for an examination based on the review. It is reasonable to presume that if the applicant had medical conditions at the time he would not have waived his right to a medical examination. d. When a Soldier departs in an AWOL status and his absence exceeds 30 days, the Soldier is dropped from the rolls as a deserter. While it is true that his court-martial charges were related to AWOL, the facts remains that after 30 days of AWOL he was dropped from the rolls as a deserter. e. The Army has never had a policy wherein a discharge is upgraded due to passage of time, based on one’s post-service conduct or to entitle one to veteran's benefits. 3. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. His service does not rise to the level required for a general or an honorable 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) AR20150007847 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007847 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1