RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 2 December 2003
         DOCKET NUMBER: AR2003091713


         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Patrick H. McGann		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 that his undesirable discharge which was characterized as under other than honorable conditions be upgraded to an honorable discharge.

2. The applicant states, in effect, that he should never have been court-martialed. He contends that medical evidence was withheld at his court-martial that would have supported his defense, that he was not allowed to go to a cardiologist appointment on 9 December 1974 while he was incarcerated, and that new medical evidence was discovered in August 2001 which supports his heart condition and profile. He contends that being refused medical attention caused his separation and damaged his health. The applicant states that he was not physically fit to perform guard duty because he was under a limited duty profile. The applicant also contends that he was arrested by civil authorities on
4 November 1974 for reckless driving and driving under the influence of alcohol; however, he was actually experiencing chest pains and was on his way to the hospital. He goes on to state that the civilian charges were dropped; however, nonjudicial punishment was illegally imposed against him on 5 November 1974 while he was incarcerated by the civilian authorities because he was unable to obtain legal counsel or medical attention to prove that he had a heart problem.

3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); eight letters of explanation; documentation from the Department of Veterans Affairs dated 1996 to 2003; DA Form 3349 (Medical Condition - Physical Profile Record), dated 18 November 1974; a copy of the Record of Trial of his special court-martial convened on 23 January 1975; and copies of his service personnel records.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
21 April 1975. The application submitted in this case is dated 26 May 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted on 30 January 1973 for a period of 4 years. He successfully completed basic combat training, basic airborne, and advanced individual training in military occupational specialty 11B (infantry).
4. On 23 July 1973, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (possession of marijuana). His punishment consisted of a reduction to E-1 (suspended for 30 days), a forfeiture of pay, extra duty, and restriction.

5. On 6 February 1974, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a reduction to E-2, a forfeiture of pay, extra duty, and restriction.

6. On 5 November 1974, nonjudicial punishment was imposed against the applicant for failure to obey a lawful order and breaking restriction. His punishment consisted of a reduction to E-2, a forfeiture of pay, extra duty, and restriction.

7. DA Form 4187 (Personnel Action), dated 11 November 1974, shows the applicant's duty status was changed from "Present for Duty" to "Civilian Confinement" effective 7 November 1974. This form also shows that the applicant was tried and convicted by civil authorities for driving while intoxicated and for leaving the scene of an accident. He was sentenced to a fine ($164) or 33 days in jail. He paid the fine and was released from civilian confinement on 12 November 1974 and returned to military control on 13 November 1974. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was held in civilian confinement from 7 November 1974 through 12 November 1974.

8. On 18 November 1974, the applicant was issued a temporary 3 profile under lower extremities for aortic murmur. His assignment limitations included no crawling, stooping, running, jumping, prolonged standing or marching and no strenuous physical activity. The profile expired on 9 December 1974.

9. On 23 January 1975, contrary to his pleas of not guilty, the applicant was convicted by a special court-martial of leaving his sentinel post on 22 November 1974 before he was relieved and disobeying a lawful command on 23 November 1974. He was sentenced to be confined at hard labor for 100 days, to forfeit $100 pay per month for 3 months and to be reduced to E-1. On 13 March 1975, the convening authority approved the sentence.

10. On 9 and 10 April 1975, the applicant underwent a separation physical examination and was found to be qualified for separation with a physical profile of 111111. Item 29 (Heart) on the applicant's Standard Form 88 (Report of Medical Examination), dated 9 April 1975, shows that competent medical authority indicated that the applicant's heart was normal. Item 11 (Have You Ever Had or Have You Now) on the applicant's Standard Form 93 (Report of Medical History), dated 10 April 1975, shows the applicant stated "No" to heart trouble. The applicant's Standard Forms 88 and 93 show that he reported, "I am in good health."
11. The applicant underwent a mental status evaluation on 10 April 1975 and was cleared for discharge.

12. The facts and circumstances surrounding the applicant's discharge are not contained in the available records. However, the applicant's DD Form 214 shows that he was discharged on 21 April 1975 with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness. He had served 1 year, 10 months and
15 days of total active service with 127 days of lost time.

13. There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

14. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

15. 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.

16. Title 10, U.S. code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

17. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.




DISCUSSION AND CONCLUSIONS:

1. Evidence of record shows the applicant was issued a temporary profile
3 under lower extremities on 18 November 1974 with assignment limitations. There is no evidence of record, and the applicant has provided no evidence, which shows that he was required to perform prolonged standing or strenuous physical activity while on sentinel duty or that sentinel duty was not a proper assignment based upon his profile and limitations. Medical evidence of record shows that prior to the applicant's separation competent medical authorities found him qualified for separation with a physical profile of 111111. Also, by his own admission, the applicant stated that he was in good health with no heart trouble.

2. Evidence of record shows the applicant was convicted by civil authorities on
7 November 1974 for driving while intoxicated and for leaving the scene of an accident. Evidence of record shows the applicant was held in civilian confinement from 7 November 1974 through 12 November 1974. There is no evidence of record, and the applicant has provided no evidence, which shows that he was in civilian confinement prior to 7 November 1974. There is no evidence which supports the applicant's contention that these civil charges were dropped. The applicant has provided no evidence which supports his contention that the nonjudicial punishment imposed against him on 5 November 1974 was illegal.

3. By law, this Board cannot disturb the finality of a court-martial conviction.

4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6. The applicant's record of service included three nonjudicial punishments, one civil conviction, one special court-martial conviction and 127 days of lost time. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.

7. Records show the applicant should have discovered the error or injustice now under consideration on 21 April 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 April 1978. However, the applicant did not file within the 3-year statute of limitations and has


not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

FNE___ MHM_____ PHM_____ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  ___Fred N. Eichorn_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091713
SUFFIX
RECON
DATE BOARDED	20031202
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19750421 Chapter 13
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.