IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080009977 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his under other than honorable conditions discharge be changed to a medical discharge. 

2.  The applicant states that he suffered a head injury when he fell from a fortified bunker during his military service in Korea and was diagnosed with a pinched nerve.  This medical condition impaired his thinking and led to his misconduct and reduction in grade.    

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 3 May 1962 and 6 December 1966.

	b.  Standard Form 600 (Chronological Record of Medical Care), dated
30 September 1960 and 18 October 1960.  

	c.  Standard Form 513 (Chronological Record of Medical Care-Consultation Sheet), dated 20 October 1960.

	d.  Standard Forms 89 (Report of Medical History), dated 20 April 1962 and
8 September 1966.



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 records show he enlisted in the Regular Army for a period of 3 years on 28 April 1960.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111.10 (Light Weapons Infantryman).  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4 (Temporary).  He was honorably discharged on 3 May 1962 for the purpose of immediate reenlistment.

3.  The applicant’s records further show he reenlisted in the Regular Army for a period of 6 years, in his infantry MOS, on 4 May 1962.

4.  The applicant's records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.  His records do not show any significant acts or achievements during his military service.

5.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) reveals multiple occasions of absence without leave (AWOL) as follows: 13 July 1964 to 30 July 1964; 31 July 1964 to 5 August 1964; 7 April 1965 to 7 April 1965; and 18 July 1965 to 25 August 1966.  Additionally, Item 44 shows the applicant was confined from 6 August 1964 to 19 October 1964.

6.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 12 November 1962, for being apprehended on or about 11 November 1962 as a curfew violator.  His punishment consisted of reduction to private first class (PFC)/E-3 and a reprimand; and 
      
	b.  on 19 June 1963, for crossing a bridge without an authorized pass, on or about 15 June 1963.  His punishment consisted of detention of $25.00 pay per month for one month until 20 January 1964, 14 days of extra duty, and 14 days of extra duty.  

7.  On 24 August 1964, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL during the periods on or about 13 July 1964 through on or about 31 July 1964 and on or about 31 July 1964 through on or about 6 August 1964, and one specification of breaking restriction.  The Court-Martial sentenced him to confinement at hard labor for 3 months, forfeiture of $46.00 pay per month for 3 months, and reduction to private (PVT)/E-1.  The sentence was adjudged on 24 August 1964 and approved on 27 August 1964.  

8.  On 19 October 1964, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 3 months was remitted without any further action. 

9.  On 8 April 1965, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty on or about 7 April 1965.  His punishment consisted of 7 days of restriction and 7 days of extra duty. 

10.  On 18 July 1965, the applicant departed his unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 16 August 1965.  His records show that he remained in this status until he surrendered to military authorities on 25 August 1966.

11.  On 14 September 1966, the applicant underwent a mental evaluation at Fort Hood, Texas.  The Assistant Post Psychiatrist remarked that the applicant established a pattern which was of little use to the military.  He remained AWOL for 14 months, had frequently partaken of narcotics, was a chronic gambler, and consistently flaunted civil and military authority.  He did not appear to feel himself subject to any social code and did not excuse his behavior.  The military psychiatrist concluded that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and that the applicant was mentally responsible and able to distinguish right from wrong and had the mental capacity to understand and participate in board proceedings.

12.  On 1 November 1966, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him for unfitness, in accordance with Army Regulation 635-206 (Personnel Separations).  The applicant subsequently acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated 
separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board, declined making a statement on his own behalf, and waived representation by his appointed counsel.

13.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  

14.  On 2 November 1966, the military physician reviewed the applicant’s physical and mental examinations and remarked that this review failed to reveal any defects which would have contributed to the applicant’s misconduct.  The applicant was physically and mentally fit for duty without any profile limitations and was responsible for his own acts.  

15.  On 3 November 1966, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation   635-206 by reason of unfitness.  The applicant's commander remarked that the applicant had established a pattern of misconduct as evidenced by his Article 15s, Special Court-Martial, and multiple instances of AWOL.  The immediate commander further recommended an Undesirable Discharge Certificate. 

16.  On 25 November 1966, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 by reason of unfitness due to misconduct and directed the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 6 December 1966.  The DD Form 214 he was issued at the time confirms he was discharged with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 5 years, 2 months, and 23 days of creditable active military service and 504 days of lost time due to AWOL and/or confinement.

17.  The applicant submitted a copy of his chronological record of medical care and consultation sheet that shows he was treated for rashes on the back of his neck on 30 September 1966 and for numbness in his hands on 18 October 1960.  

18.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statue of limitations.

19.  On 8 May 1998, the Army Board for Correction of Military Records (ABCMR) denied the applicant’s request for an upgrade of his discharge.

20.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

21.  Army Regulation 635-200, paragraph 3-7a, 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.

22.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation for physical fitness of Soldiers who may be unfit for their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 3-2b of this regulation provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

24.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the Medical Evaluation Board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

25.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated

26.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

27.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

28.  Title 38, United States Code, Sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his narrative reason for separation should be changed to medical discharge was carefully considered; however, there is insufficient evidence to show he should have been medically discharged or retired by reason of physical disability. 

2.  The applicant’s records show he was treated for routine illness in 1960; however, he reenlisted in 1962 and served until 1966 with no evidence of any medical limitations.  Furthermore, there is no evidence that the applicant was issued a permanent profile or that he underwent an MEB or a PEB.  In the absence of a PEB directing the medical discharge, there is insufficient evidence to grant the applicant the requested relief.

3.  The applicant's records reveal an extensive history of AWOL as well as a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ and one instance of a special court-martial.  There is no evidence that his extensive history of misconduct was a result of his alleged head injury. 

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  The applicant's discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

6.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															XXX
      ______________________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009977



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ABCMR Record of Proceedings (cont)                                         AR20080009977



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