RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060010996 


	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. Ted Kanamine

Chairperson

Mr. Larry Bergquist

Member

Ms. LaVerne Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a medical discharge. 

2.  The applicant states that by today’s standards the symptoms that he exhibited during the psychiatric evaluation would have been interpreted as characteristics of Post Traumatic Stress Disorder (PTSD) and that he would have been sent to a hospital for rest and recuperation.  He states that he was a 17 year old who volunteered to serve his country in a time of war, that he elected to go airborne, and that before he was 18 years old he was an airborne infantryman.  He also states that to subject a person who volunteered to serve the country in a time of war and who did not commit a criminal act was unjust.  He contends that his ability to serve was impaired by the racism that he encountered, that his chain of command was broken so he could not communicate his distress, and that when he was finally sent to see his commanding officer he was unable to communicate.    

3.  The applicant provides a clinical record, dated 12 March 1954; a letter, dated 25 September 2002, from his Department of Veterans Affairs (DVA) therapist; a certificate, dated 13 April 1954; and a FEC Form 261 (Prior History of Accused). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 31 August 1954.  The application submitted in this case is dated 24 July 2006.

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 limitations 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’s military records are not available to the Board.  This case is being considered using information contained in a previous action by the Army Board for Correction of Military Records.  

4.  The applicant enlisted in the Regular Army on 7 July 1952 for a period of 3 years.  He served in Korea and is entitled to wear the National Defense Service Medal, the Korean Service Medal, the United Nations Service Medal, and the Parachutist Badge.
5.  On 12 March 1954, the applicant was referred for a psychiatric evaluation due to infractions of discipline and a lethargic attitude toward his duties.  He was diagnosed with “Observation, psychiatric, no disease found” and the disposition was “return to duty.”  The psychiatrist recommended that the applicant be “discharged under the provisions of Army Regulation 615-368 if his present attitude continues unchanged and if he continues to incur disciplinary defections.”

6.  On 7 April 1954, the applicant was convicted by a summary court-martial of failure to repair and breaking restriction.  His punishment consisted of 30 days hard labor without confinement and forfeiture of $60.

7.  On 19 April 1954, the applicant was convicted by a special court-martial of failure to obey a noncommissioned officer (NCO), injuring himself to avoid service as an enlisted member, and breaking restriction.  He was sentenced to be confined at hard labor for 6 months and to forfeit $55 pay per month for 6 months.   

8.  On 2 July 1954, the applicant was convicted by a general court-martial of assaulting a superior NCO by striking at him with his fists and a stone and disobeying a lawful order from this superior NCO.  He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 6 months.  On 9 July 1954, the convening authority approved the sentence.

9.  The Army Board of Review affirmed the findings and sentence on 26 July 1954.  His appellate review was completed on 31 August 1954.

10.  Accordingly, the applicant was discharged pursuant to the sentence of a general court-martial on 31 August 1954.  He was issued a Dishonorable Discharge Certificate.

11.  The available records do not contain a discharge document.  However, a Certification of Military Service was prepared on 19 June 1996.

12.  In support of his claim, the applicant provided a copy of his psychiatric evaluation.  He provided a letter, dated 25 September 2002, from his DVA therapist which states that “It would appear that [the applicant’s name] still has some of the characteristics related to Post Traumatic Stress Disorder (PTSD) as a result of his time in Korea.”  He also provided a certificate, dated 13 April 1954, from Headquarters, 44th Medical Detachment, which states he was brought to the dispensary on 5 April 1954 for a suicide attempt.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-1, states, in pertinent part, that Soldiers charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or a punitive discharge may not be referred for, or continue, disability processing.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he did not commit a criminal act, evidence of record shows that he was convicted by a general court-martial of assaulting a superior NCO and disobeying a lawful order.
  
2.  Although the applicant contends that his ability to serve was impaired by racism, there is no evidence of record which shows that he was a victim of discrimination.

3.  The applicant’s contentions pertaining to his chain of command relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

4.  There is no evidence of record to show the applicant was ever medically unfit to perform his duties or that he had any type of medical or mental condition.  The 12 March 1954 psychiatric evaluation provided by the applicant shows that no disease was found.  In addition, since he separated under a regulatory provision that authorized a dishonorable discharge (i.e. a punitive discharge), it does not appear he was eligible for physical disability processing.  Therefore, there is no basis for a medical discharge.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 31 August 1954; therefore, the time for the applicant to file a request for correction of any injustice expired on 30 August 1957.  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 timely file in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

TK_____  LB_____  _LD_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__Ted Kanamine________
          CHAIRPERSON




INDEX

CASE ID
AR20060010996
SUFFIX

RECON

DATE BOARDED
20070227
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.