BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150015136 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 BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150015136 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 to warrant amendment of the ABCMR's decision in Docket Number AR20060007437, dated 16 November 2006, 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. BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150015136 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 reconsideration of his earlier request to upgrade his discharge to honorable or general, under honorable conditions. 2. The applicant states he was young and did not know how to handle the events that took place. He served honorably until his life took a turn for the worse. 3. The applicant provides: * two pages of a Standard Form (SF) 509 (Doctor's Progress Notes) * Purple Heart Certificate * Undesirable Discharge Certificate * Disabled American Veterans (DAV) Initiation Certificate * DAV Certificate Of Appreciation * Military Order of the Purple Heart (MOPH) membership certificate * MOPH Certificate of Appreciation and Letter of Commendation CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060007437 on 16 November 2006. 2. On 28 August 1968, the applicant was inducted into the Army of the United States. He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. He served in Vietnam with Company C, 1st Battalion, 6th Infantry Regiment. He arrived in country on 23 January 1969 and was assigned to his unit on 6 February 1969. 4. On 23 March 1969 he was wounded in action (right hand) and was awarded the Purple Heart. The applicant was hospitalized in Vietnam and then medically evacuated for additional treatment on or about 29 March 1969. 5. Effective 17 May 1969, the applicant was assigned for duty as an assistant gunner with the 7th Infantry Division in Korea. 6. On 5 December 1969, the applicant failed to return from leave, was placed in an absent without leave (AWOL) status, and subsequently was declared a deserter. 7. The medical records provided by the applicant show that on 29 May 1970, while AWOL, he was involved in an automobile accident sustaining a fracture to his left femur and laceration to his left scalp, left cheek, and left knee. In May and July 1970, he underwent surgery for the compression fracture of his femur. 8. On 16 October 1975 he was apprehended by military authorities and returned to military control. 9. On 20 October 1975, court-martial charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, for his period of absence from 5 December 1969 to on or about 16 October 1975, a total of 2,141 days (5 years, 10 months, and 11 days excluding the end date). 10. He requested, was processed under, and received a 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. 11. The approval authority reduced the applicant to pay grade E-1 and directed his characterization of service be under other than honorable conditions with issuance of an Undesirable Discharge Certificate. He was accordingly discharged effective 30 December 1975. 12. His DD Form 214 (Report of Separation from Active Duty) shows: * 1 year, 5 months and 22 days of creditable active military service * 263  (sic) days of lost time * his authorized awards – * National Defense Service Medal * Vietnam Service Medal * Purple Heart * Republic of Vietnam Campaign Medal with Device (1960) * Armed Forces Expeditionary Medal (Korea) * Republic of Vietnam Gallantry Cross with Palm Unit Citation 13. On 16 November 2006, the ABCMR denied the applicant's request for an upgrade of his discharge. The Board found: a. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. b. All requirements of law and regulation were met. The rights of the applicant were fully protected throughout the separation process. c. There was no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them and that his service in the Republic of Vietnam and receipt of the Purple Heart were taken into consideration at the time of his separation. d. The type of discharge and reason therefore were appropriate considering all of the facts of the case. 14. In the development of this case an advisory opinion was obtained from the Senior Medical Advisor, Army Review Boards Agency (ARBA). He opines: a. The applicant was slightly wounded in the right hand in Vietnam on 23 March 1969 by small arms fire during a combat operation when he encountered a hostile force. b. He was AWOL from 5 December 1969 through 16 October 1975. c. The Doctor's Progress Notes SF 509 (2 pages), dated 29 May 1970, indicate the applicant was in a motor vehicle accident and sustained a fracture to his left femur with lacerations to his left knee and had head injuries to his left frontal scalp and left cheek. No traumatic brain injury (TBI), alteration or loss of consciousness, or other TBI symptoms were noted by the treating physician. d. A review of the available documentation found no evidence of a medical disability or other medical condition which would support a change to the character or reason for the discharge in this case. The applicant met medical retention standards in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. 15. A copy of the advisory opinion was forwarded to the applicant. On 28 November 2016 the applicant provided additional medical evidence. a. His 29 May 1970 operation report from the Veterans Administration (VA) hospital in Augusta, GA, shows he underwent a patellectomy and insertion of a Steinmann pin in his left femur. He remained hospitalized post-surgery. b. On 17 July 1970 he underwent a second operation for a fracture of the distal third of his left femur at the Augusta VA hospital. c. His hospital summary shows he was discharged on 13 August 1970. His diagnoses were fracture of the left femur, open fracture of the left patella, and laceration of the face. Upon admittance, a general surgeon debrided and closed the lacerations on his scalp and left cheek. He underwent two operations and had 6 weeks of traction. He was discharged with crutches and a recommendation to follow-up with the VA Orthopedic Clinic. The hospital report does not show any report of a TBI injury related to his automobile accident. d. A VA Application for Hospital Treatment or Domiciliary Care form dated 29 May 1970 and signed by the applicant’s father shows the applicant was separated on 12 February 1970 from the U.S. Army with a general discharge, under honorable conditions. REFERENCES: 1. Army Regulation 635-200, as then in effect, set forth the basic authority for the separation of enlisted personnel. It states: 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 for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 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. c. A discharge under other than honorable conditions (then referred to as an undesirable discharge) was issued when there was one or more acts or omissions that constitute a significant departure from the conduct expected of a Soldier. d. Chapter 10, as then in effect, 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 discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate. 4. Army Regulation 635-40 establishes the Physical Disability Evaluation System and 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 and provides: a. The mere presence of 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, rank, grade, or rating. The Army must find that a Soldier is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. The medical retention standards and guidelines are not to be taken as a mandate that possession of one or more of the listed conditions or physical defects mean automatic disability retirement or separation from the Army. Regardless of the presence of physical deficiencies, inadequate performance should not be considered as evidence of physical unfitness for a member’s grade, office, rank or rating. c. A Soldier who is charged with an offense, for which he could be dismissed or given a punitive discharge, or who is under sentence of dismissal or punitive discharge, may not be referred for, or continue, disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge, refers it for trial to a court-martial which cannot adjudge such a sentence, or suspends the sentence in the case of a Soldier already under sentence, the case may be referred for disability processing. DISCUSSION: 1. The applicant went AWOL after his authorized leave had ended. He then sustained serious injuries to his left leg approximately 6 months into his AWOL period requiring two separate surgeries and extended hospitalization. He did not take action to return to military control. He received treatment at a VA hospital, was discharged from the hospital, and then nearly 5 years later he was apprehended and returned to military control. 2. The evidence does not offer any indication that his separation was not properly and equitably conducted in accordance with the regulations in effect at the time. It is presumed all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process. 3. The medical advisor in this case found no evidence of a medical disability or other medical condition which would support a change to the character or reason for discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015136 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015136 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2