RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070006718 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jerome Pionk

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, that his discharge under honorable conditions be upgraded to an honorable discharge and he wants to be considered for a medical discharge with potential benefits.

2.  The applicant states, in effect, that he has progressive muscular dystrophy and that while he was on active duty he was not able to perform his military duties due to this diagnosis, which led to his pattern of misconduct.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge or Certificate) with a separation date of 3 November 1962.  He further provides a statement from a medical doctor which says the applicant has been diagnosed with Facioscapulohumeral Muscular Dystrophy (FSHD) and enclosed a pamphlet published by the Muscular Dystrophy Association describing FSHD. 

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's military records show he enlisted in the Regular Army on 17 August 1960 for 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 131.00 (Armor Crewman). 

3.  On 26 January 1961, the applicant was convicted by a summary court-martial of two specifications of being disrespectful in language toward a superior commissioned officer and a superior noncommissioned officer.  He was sentenced to hard labor without confinement for 3 months, forfeiture of $60.00 for 6 months and reduction to private/pay grade E1.  The sentence was approved on 2 February 1961.
4.  On 2 August 1961, the applicant was convicted by a summary court-martial of one count of being disrespectful in language toward a superior noncommissioned officer.  He was sentenced to hard labor without confinement for 30 days with
15 days suspended.  The sentence was approved on 5 August 1961.

5.  On 25 August 1961, the applicant was transferred to Troop H, 2nd Reconnaissance Squadron, 14th Armored Cavalry located in Bad Kissingen, Germany, for the purpose of military rehabilitation.  He showed signs of improvement and was promoted to private first class/pay grade E3.

6.  On 1 August 1962, records show he accepted two nonjudicial punishments (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) on or about 1 August 1962 and again on 3 August 1962 through 19 August 1962.  His punishments were 14 days extra duty and for the second offense 14 days restriction to the troop area.

7.  On 25 September 1962, records show the applicant was evaluated under the provisions of Army Regulation 635-40 for mental and physical competence to determine his fitness for continued military service or separation.  The certifying medical officer found no disqualifying defects sufficient to warrant medical separation.  

8.  The applicant's available medical records show he was treated for minor complaints such as sore throat on 7 September 1960, malaise with vomiting on 
9 November 1961 and again on 5 December 1961, injury to left eye on 5 April 1962, hyperextension of left 5th finger on 24 July 1962 and that he received continuous medical care for this injury through 1 August 1962.  

9.  On 21 September 1962, the applicant was convicted of a third summary court-martial for being AWOL from his appointed place of duty.  He was sentenced to confinement at hard labor for 1 month, to forfeit $70.00 pay for one month, and reduction to private/pay grade E1.  The sentence was approved on 1 October 1962.

10.  On 27 September 1962, the applicant's troop commander recommended him for discharge due to unfitness for frequent incidents of a discreditable nature with civil and military authorities.  The troop commander recommended that the applicant receive an undesirable discharge.

11.  On 28 September 1962, records show he acknowledged his company commander's proposed separation action for unfitness for military service, and he consulted with legal counsel.  The applicant indicated that he understood that if he was separated that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.  The applicant waived his right to a hearing by a board of officers and he did not submit a personal statement on his behalf to the separation authority.

12.  On 28 September 1962, the squadron commander recommended approval to the troop commander's recommendation to separate the applicant and recommended an undesirable discharge.   

13.  On 5 October 1962, the brigade commander reviewed and recommended approval of the troop commander's recommendation to discharge the applicant for unfitness and said that the applicant has a disregard for discipline and good order that is not likely to be overcome with rehabilitation.  The brigade commander recommended an undesirable discharge. 

14.  On 10 October 1962, the general court-martial separation authority approved the company commander's recommendation for discharge and directed that the applicant receive an Undesirable Discharge Certificate.  

15.  On 3 November 1962, the applicant was discharged accordingly.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 2 years, 1 month and 22 days of net creditable active military service.  

16.  On 20 April 1981, the Army Discharge Review Board (ADRB) granted partial relief and directed the recharaterization of the applicant's service to under honorable conditions (general) under the provisions of Title 10, United States Code, Section 1553. 

17.  On 22 June 1981, he received a revised DD Form 214, which shows his characterization of service as under honorable conditions.  This same DD Form 214 shows he lost 25 days under Title 10, United States Code, Section 972.

18.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

19.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.
20.  Army Regulation 635-208 (Personnel Separations), then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention is that he should have been medically retired not separated.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary showing that he was unfit for military service upon his discharge on 3 November 1962.  The applicant did not have any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

2.  The applicant further contends that his discharge should be upgraded.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.  Upon request and then review, ADRB did upgrade the applicant's characterization of service in 1981 to under honorable conditions.

3.  The applicant’s record of service shows he had 25 days of lost time.  The applicant also received NJP and was convicted by three summary courts-martial. 

4.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no 
record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Therefore, the applicant is not entitled to an honorable discharge.

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

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  

7.  Based on all of the foregoing, there is insufficient basis to change the type of discharge to medical.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WP __  __LD ___  __JP____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





_____William Powers_________
          CHAIRPERSON




INDEX

CASE ID
AR20070006718
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070925
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6000
2.

3.

4.

5.

6.