MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 January 2002
         DOCKET NUMBER: AR2001062465

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: That his general discharge be upgraded to honorable or a medical discharge.

APPLICANT STATES: That his discharge should be upgraded to honorable or medical because of the general court-martial he was given, the bad conduct discharge he was given (which was changed to a general discharge) and the bad time he had in prison. He also contends, in effect, that he did not have a fair trial and he was the victim of racial discrimination. In support of his application, he submits four undated letters of explanation.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant’s pre-induction physical examination, conducted on 20 March 1951, shows that he failed the Armed Forces Qualification Test and that his physical profile was 111131 due to blindness of the left eye. However, it was administratively determined that he was acceptable for military service.

The applicant was inducted on 16 April 1951. He trained as a general construction worker and was transferred to Korea on 8 October 1951.

The applicant’s Service Record shows that he was absent without leave (AWOL) from 9 July 1951 to 10 July 1951.

On 3 June 1952, while in Korea, the applicant was convicted by a summary court-martial of failing to obey curfew, for off limits violations and for breaking arrest in quarters. He was sentenced to perform hard labor for 14 days and to forfeit $50.

On 2 February 1953, while in Korea, the applicant was convicted by a general court-martial of wrongfully having in his possession an undetermined amount of a habit forming narcotic drug (a morphine compound). He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances and to be confined at hard labor for 1 year. On 28 February 1953, the convening authority approved the sentence but suspended the bad conduct discharge until the applicant’s release from confinement or until completion of appellate review, whichever is the later date.

On 23 April 1953, the Office of The Judge Advocate General affirmed the findings of guilty and the sentence. On 9 June 1953, the applicant’s appellate review was completed but the bad conduct discharge was suspended until the applicant’s release from confinement.

While in confinement, the applicant underwent a separation physical examination on 9 July 1953 and was found qualified for separation with a physical profile of 111331. The Standard Form 88 (Report of Medical Examination) shows the entry, “Unable to hear whisper or spoken voice with left ear. H-3, deaf in left ear.” in item 73 (Notes and Significant or Interval History).

On 21 November 1953, the applicant was released from confinement. Accordingly, the applicant was discharged pursuant to the sentence of a general court-martial. He was issued a Bad Conduct Discharge Certificate. He had served 1 year and 8 months of total active service with 120 days lost due to AWOL and confinement and had 220 days lost subsequent to normal expiration term of service due to confinement.

On 12 November 1958, the Army Board for Correction of Military Records (ABCMR) considered the applicant’s request for a discharge upgrade to honorable. The ABCMR recommended that the applicant’s bad conduct discharge be upgraded to a general discharge. On 31 December 1958, the Under Secretary of the Army approved the recommendation of the ABCMR.

On 2 March 1959, counsel for the applicant requested reconsideration of the applicant’s request for a discharge upgrade to honorable. However, the ABCMR determined that no new material evidence had been submitted and this request was closed without action.

On 3 October 1973, the applicant requested reconsideration of his request for a discharge upgrade to honorable. However, the ABCMR determined that no new material evidence had been submitted and this request was closed without action.

With regard to the applicant’s current request that his discharge be upgraded to honorable, the ABCMR determined that the applicant has provided no new material evidence with his application. Therefore, this portion of the applicant’s request will not be discussed further in this Memorandum of Consideration. However, the Board will consider that portion of the applicant’s request for a medical discharge.

Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes,
and S-psychiatric. Numerical designator "1" under all factors indicates that an



individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect
which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board considered the applicant’s contention that he should have been
given a medical discharge. However, evidence of record shows that at the time of the applicant’s confinement physical on 9 July 1953, competent medical authority determined that he was qualified for separation from the Army with a physical profile of 111331. The governing regulation states that numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. Accordingly, the applicant was discharged from active duty pursuant to a general court-martial conviction, not as the result of a medical condition.

2. The applicant’s contention that he did not have a fair trial is not supported by the evidence of record. The applicant has failed to show that the general
court-martial proceedings were not conducted in accordance with law and regulations applicable at the time or that he was denied due process.

3. The Board also considered the applicant’s contention that he was the victim of racial discrimination. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

4. Trial by court-martial was warranted by the gravity of the offense charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

JLP_____ CJP____ KWL_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2001062465
SUFFIX
RECON
DATE BOARDED	20020117
TYPE OF DISCHARGE	(GD) The Army Board for Correction of Military Records recommended that the applicant’s bad conduct discharge be upgraded to a general discharge on 12 November 1958. On 31 December 1958, the Under Secretary of the Army approved the recommendation of the ABCMR.
DATE OF DISCHARGE	19531121
DISCHARGE AUTHORITY
DISCHARGE REASON	Pursuant to the sentence of a general court-martial.
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.