IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009346 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009346 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009346 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 – * his characterization of service be upgraded from an undesirable discharge (UD) to an honorable discharge (HD) * the reason for his separation be shown as medical * he be granted full Department of Veterans Affairs (VA) benefits, military back pay, and a pension retroactive for the past 30 years 2. The applicant states: a. He failed the eye test and was found to be color blind. This interfered with his performance of barracks guard duty when the lights were out. b. His drill sergeant, while under the influence of alcohol, punched him in the face on several occasions. c. He was absent without leave (AWOL) due to his fear of the drill sergeant. He informed his company commander but no action was taken against the drill sergeant. d. He took a chapter 10 discharge without legal counsel. e. He believes that he should have received a medical discharge due to being found to be color blind. f. He believes he is entitled to full retroactive VA benefits and 30 plus years of back pay and benefits as an E-1. 3. The applicant provides no additional supporting documentation. 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 authority granted by Title 10, U.S. Code, section 1552 is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the other Service branches, the Department of Defense, or any other governmental agency such as the VA. Therefore his request for VA benefits will not be addressed further in these Proceedings. 3. The applicant enlisted on 3 June 1976. He started but failed to complete advanced individual training due to being AWOL. He was declared a deserter after 30 days of being AWOL. 4. On 10 December 1976, the applicant was shot in an incident at a civilian motel and taken to the local hospital. During the hospital intake proceedings he was found to have an outstanding arrest warrant as an Army deserter. Upon completion of his medical care, he was transferred to the Sebastian County Jail and returned to military control on 27 December 1976. 5. Upon return to military control he was charged with being AWOL from 2 August 1976 through 10 December 1976, 130 days. 6. On 30 December 1976, after consulting with counsel and being advised of his rights and options, the applicant submitted a voluntary request for discharge, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge). He acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. He stated that under no circumstances did he desire further rehabilitation, as he had no desire to perform further military service. He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD. 7. Also on 30 December 1976, the applicant requested and was placed on excess leave without pay or allowances pending finalization of his discharge request. 8. The request for discharge was approved on 18 January 1977 and the applicant was separated on 25 January 1977 with service characterized as under other than honorable conditions (UOTHC). His DD Form 214 shows he had 2 months and 15 days of total active service with 130 days of lost time and 27 days in excess leave status. 9. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statute of limitations. REFERENCES: 1. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and set 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. Separation or retirement by reason of disability requires processing through the PDES. The regulation state the mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Further, disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and the can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 3. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. d. Chapter 10 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 UOTHC discharge is normally considered appropriate. 5. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of Army records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-2 states the ABCMR will decide case based on the evidence of record. It is not an investigative body. DISCUSSION: 1. The applicant's color blindness was not incurred in or aggravated by his limited period of service. While color blindness would preclude serving in some military specialties, it is not a condition that would have rendered him unfit for all military service. 2. The applicant has not provided any evidence that he had any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. 3. The applicant has not submitted and the record does not contain any evidence that he was not properly paid or is owed any back pay or benefits. 4. The applicant has not submitted and the record does not contain any evidence to support his allegation that he was assaulted by his drill sergeant or that his command ignored his complaint of the alleged assault. 5. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. In his request for discharge he indicated he had consulted with counsel prior to requesting the chapter discharge. 6. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the offence for which he requested discharge and is appropriate for the applicant's overall record of military service. 7. The applicant had more lost time than creditable service. His limited period of creditable service is devoid of any indication of service so significant that any other discharge is warranted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009346 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009346 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2