IN THE CASE OF: BOARD DATE: 31 March 2016 DOCKET NUMBER: AR20150002572 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: 31 March 2016 DOCKET NUMBER: AR20150002572 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: 31 March 2016 DOCKET NUMBER: AR20150002572 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 discharge under other than honorable conditions (UOTHC) be changed to a medical discharge under honorable conditions (general). 2. The applicant states: a. He should have been given a medical discharge instead of a discharge UOTHC based on his two broken legs that occurred while in airborne training that caused him to make unwise decisions. b. He was absent without leave (AWOL) twice. The first time was to seek medical treatment and the second time was because of his injuries and depression. He was considered a malingerer, he was shamed by his peers, and he was told he did not measure up to being an airborne-qualified Soldier. c. He tried to maintain a good outward façade, but internally he was severely depressed. Even now no one takes the residuals of military service injuries that occurred seriously. 3. The applicant indicates he provided copies of military records; however, these records are not available for review. 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 enlisted in the Regular Army on 23 July 1974 for a period of 4 years. He completed his training and was awarded military occupational specialty 13B (field artillery crewman). 3. Records show he was AWOL from 6 January 1975 to 11 January 1975. 4. He was permanently disqualified from airborne training on 14 February 1975 due to disciplinary problems. 5. Between February 1975 and March 1976, nonjudicial punishment (NJP) was imposed against him on four occasions for: * failing to repair * being AWOL from 6 March 1975 to 24 March 1975 * disobeying a lawful order * failing to repair 6. Records show he was AWOL from 2 May 1975 to 23 September 1975. 7. His records are void of the specific facts and circumstances surrounding his discharge action. However, his Army Discharge Review Board (ADRB) proceedings show: a. On 21 September 1976, he was charged with AWOL from 8 June 1976 to 20 September 1976. b. On 16 December 1976, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He elected to make a statement in his own behalf; however, this statement is not available for review. c. On 11 January 1977, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. 8. On 21 October 1976, he underwent a separation physical examination. Items 36 (Feet), 37 (Lower Extremities) and 42 (Psychiatric) of his Standard Form 88 (Report of Medical Examination) shows he was rated normal. 9. On 20 January 1977, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed a total of 1 year, 8 months, and 20 days of creditable active service with 278 days of lost time. His service was characterized as UOTHC. 10. There is no evidence of record which shows the applicant was diagnosed with depression or any other medical or mental health condition prior to his discharge. 11. In February 1990, the ADRB denied his request for a discharge upgrade. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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 UOTHC is normally considered appropriate. A discharge UOTHC requires reduction to the lowest enlisted grade. b. 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty. 3. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. DISCUSSION: 1. The applicant contends he should have been given a medical discharge based on his two broken legs that occurred while in airborne training that caused him to make unwise decisions. However, contemporaneous medical evidence shows his feet and lower extremities were rated normal. 2. His contention he was severely depressed was carefully considered. However, there is no evidence and he provided no evidence to support this contention. He was rated normal for "Psychiatric" on 21 October 1976. 3. There is no evidence showing the applicant was not able to perform his duties while serving on active duty. There is insufficient evidence to show a medical discharge was warranted. 4. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. 5. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 6. His record of service included four NJPs and 278 days of lost time. As a result, his record of service was not satisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002572 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2