RECORD OF PROCEEDINGS


         IN THE CASE OF: .
        

         BOARD DATE: 09 December 2003
         DOCKET NUMBER: AR2003089637


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

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Raymond J. Wagner		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, an upgrade of his Bad Conduct Discharge. He appeals, for the sake of humanity, to please grant him a medical discharge for his condition that he, from youth and ignorance, destroyed his life.

2. The applicant states, in effect, that:

a. he is providing proof that he entered the Army "one day out of court" for the same incident he was later court-martialed for;

b. he was never advised of treatment or got any help until years later to know the effects of alcohol and drugs, and the things that are destroyed; and

c. from his record, he was looked at to be in possession [of drugs]. He was standing closest to the marijuana and had more to lose and that is why he was moved back on post before he would ETS [leave the service at the expiration of his term of service] and he was court-martialed.

3. The applicant provided a copy of a summary of Case No. 71-****, dated 16 September 1971; a copy of a vocational evaluation report prepared by the Phoenix Rehabilitation Corporation, dated 7 January 2003; and a copy of a paper containing an Explanation of Terms, prepared by the Pace Boulevard Family Practice, dated 3 February 2003.

4. The applicant followed up on 18 September 2003 and submitted a listing
of all medications that he allegedly has been prescribed, a copy of a report prepared by the Gastroenterology Associates of Pensacola; a Physical Capacities Evaluation, prepared by the Pace Boulevard Family Practice, dated 15 September 2003; and a Medical Assessment of Ability to do Work-related Activities, dated 12 September 2003.

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 AR2002079300, on 20 February 2003.

2. The summary of Case No. 71-**** is dated 16 September 1971. The Country Solicitor announced a Nolle Prosequi in the case before the court of record in Escambia County, Florida, because there was insufficient evidence to connect the applicant with marijuana, which was seized in this case.

3. The applicant enlisted in the Regular Army, for 3 years, on 17 September 1971, "one day out of court" for the same type of circumstances for which he was later court-martialed.

4. Item 17 (Physical Status), of the applicant's DA Form 20, Enlisted Qualification Record, shows his profile serial to be: P-1/U-1/L-1/H-1/E-1/S-1. Army Regulation 40-501, chapter 7, physical profiling, 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. The 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. Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

5. The applicant's service medical records are not available, and the applicant provided none, which would indicate that a medical problem existed while he was on active duty. There is also no indication in his service qualification record that he had medical issues that required imposition of assignment restrictions.

6. All document submitted by the applicant having a medical-relationship were dated during the current calendar year (CY 2003).

7. Item 28 (Specialized Training), of the applicant's DA Form 20, shows that he received training on Drug Abuse on 29 September 1971.

8. On the date of his enlistment in the Army, the applicant was just over 18 years of age. When the applicant was subjected to his first special court-martial, on 23 August 1972, for violations of the Uniform Code of Military Justice, committed on 10 June 1972, he was just over 19 years of age.

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9. The applicant was convicted, on 23 August 1972, of an aggravated assault of a fellow soldier, on 10 June 1972, by pointing a knife at him with a means likely to produce grievous bodily harm, and an assault upon a Japanese National on Okinawa, on 10 June 1972, by striking him in the face with his fists and intentionally inflicting grievous bodily harm by lacerating his head and inflicting a cut over his eye and his lip. He was sentenced to reduction to the rank and pay grade, Private, E-1; confinement at hard labor for 3 months; and a forfeiture of $150.00 per month, for four months.

10. The applicant was convicted, on 9 May 1974, for possession, on 2 April 1972, of one ounce or more of marijuana. He was sentenced to a forfeiture of $160.00 per month for 3 months, confinement at hard labor for 80 days, and to be discharged from the service with a bad conduct discharge.

11. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his bad conduct discharge. On 10 May 1979, the ADRB determined that the applicant’s discharge had been proper and equitable and it denied clemency in the form of an upgrade to his discharge.

12. Title 10 of the United States Code (USC), section 1552, as amended, does not permit any redress by the ABCMR of the finality of a court-martial conviction, and it empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1. The applicant provided no evidence that his age or level of maturity impaired his ability to be a good soldier or that he was any less mature than other soldiers of the same age who successfully served their country and successfully completed their military service obligation.

2. Contrary to the applicant's assertions, he was provided instruction and training on drug abuse awareness while he was undergoing basic combat training at Fort Polk, Louisiana, on 29 September 1971.

3. There is also no evidence, and the applicant has provided none that his discharge was unjust because it occurred when he was due to complete his enlistment. The applicant had an extensive disciplinary history, which began on about 10 June 1972. Violations of the UCMJ resulted in his receiving non-judicial punishment and included a previous conviction by a special court-martial.

4. There is no evidence, and the applicant provided none, that the special court-martial which resulted in his receiving his bad conduct discharge was based on offenses that occurred prior to his entering the Army. The applicant was sentenced to a bad conduct discharge for a drug related offense that took place nearly 2 years and 8 months after he enlisted in the Army.

5. The applicant was assigned a numerical designator 1 under all factors of the physical profile serial on 17 September 1971. This indicates that he was considered to possess a high level of medical fitness, had no medical condition or physical defect which required restriction in assignment, and was considered medically fit for any military assignment. The applicant audited his personnel qualification record on 18 December 1972, and on this date, there had been no change in his medical condition or physical profile serial.

6. The applicant's desire to have his bad conduct discharge upgraded to enable him to qualify for medical benefits is acknowledged; however, the ABCMR does not grant relief solely for this purpose.

7. Under Title 10, USC, section 1552, as amended, the ABCMR is prohibited from any redress of the finality of a court-martial conviction. It is only empowered to change a discharge, if clemency is determined to be appropriate, to moderate the severity of the punishment imposed.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

MDM____ ECP____ RJW____ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice or that clemency is determined to be appropriate. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002079300, dated 20 February 2003.





                  ___MARK D. MANNING____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089637
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19750422
DISCHARGE AUTHORITY	AR 635-200, Para 11-2
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 394	144.0133
3.
4.
5.
6.