IN THE CASE OF:	  

		BOARD DATE:	        8 January 2009

		DOCKET NUMBER:  AR20080016718 


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 reconsideration of his previous request to upgrade his undesirable discharge (UD).

2.  The applicant states, in effect, he was medically unqualified for enlistment because of a “mild Kyphotic Curve in the lower thoracic spine.”  He adds that since his military service, he has worked for the city of Louisville, Kentucky for
18 years, but had to take retirement because of his medical condition.

3.  The applicant provides:

	a.  A self-authored letter, dated 7 October 2008.

	b.  A Table of Contents listing 36 items consisting of 53 pages, including:

		(1)  DD Form 62 (Selective Service System – Order to Report for Armed Forces Physical Examination) showing that, on 4 January 1968, he was found “not acceptable for induction” presumably because of an overweight condition.  The form has the acronym “MREP [Medical Remedial Enlistment Program]” hand-written on it.  The MREP permits applicant’s with specific medical conditions to enlist for the purpose of receiving corrective treatment after enlistment, but prior to starting training.  Overweight is one of the listed medical conditions.

		(2)  DA Form 3349 (Physical Profile), dated 20 November 1969, showing a profile of “2” for physical capacity or stamina because of a “round back deformity.”  He was found “fit for duty” with limitations.

		(3)  A 6 December 1967 letter from a physician’s office stating, “The heart and great vessels are within normal limits.  There are small calcifications in the roots.  A small calcification also overlies the anterior aspect of the left first rib.  A lordotic view was obtained and no infiltration was demonstrated in the apical region.  There is wedging anteriorly of the centra of T-9, 10, 11, and 12; and a mild kyphotic curve in the lower thoracic spine is present.  Conclusion:  There is no evidence of active pulmonary disease.”

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 AR20080013277 on 25 September 2008.

2.  The applicant submitted a copy of a 6 December 1967 doctor’s statement, a DD Form 62 with an MREP enlistment form, and a DA Form 3349 in support of his application.  These documents were not previously reviewed by the ABCMR and are considered new evidence warranting consideration by the Board.

3.  The applicant was rejected for induction in January 1968, ostensibly because of an overweight condition.  He enlisted in the Regular Army on 28 October 1968 under the MREP program and completed Basic Combat Training at Fort Knox, KY.  He further completed Infantry Advanced Individual Training at Fort Polk, LA with excellent conduct and efficiency ratings.

4.  Following completion of all required military training, the applicant was ordered to the U.S. Army Overseas Replacement Station, Fort Lewis, WA for preparation for assignment to Vietnam.  He did not report and was listed as absent without leave (AWOL) from 9 April 1969 to 28 June 1969.  

5.  The applicant’s military record is replete with 12 periods of AWOL and confinement.  He had 287 days of time lost prior to his normal ETS (expiration term of service) date and 194 days of time lost subsequent to his ETS date.

6.  While in confinement from 10 November 1969 to 21 December 1969, the applicant was examined by military doctors and found to have a “round back deformity.”  He was given a P-2 profile, but found fit for duty with limitations.

7.  Court-martial charges were preferred against the applicant on 17 May 1971 for being AWOL during the periods 8-11 September 1970, 22 September -10 October 1970, 13 October - 3 December 1970, and 17 December 1970 -
3 May 1971.  The applicant requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200.  His request was accepted and he was given an UD on 6 July 1971.

8.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

9.  AR 40-501 (Standards of Medical Fitness), 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.  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 AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  “Kyphosis” is a term used to describe an abnormal curvature of the spine.  While a certain degree of rounded curvature of the spine is normal, a kyphotic curve that is more than 50° is considered abnormal.  In extreme cases, an individual with kyphosis may present as being “hunchbacked.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant presented evidence to show he had a mild kyphotic curve of the lower thoracic spine prior to his enlistment.  He also presented evidence that he was diagnosed with kyphosis by Army doctors while in confinement in November 1969.  He contends he should not have been in the Army in the first place, so, by extension, he should not have been given an UD.

2.  The applicant’s mild kyphosis was not medically disqualifying.  He had a P-2 profile, but was found medically fit for duty with limitations; he could have successfully performed duty as a Soldier in a military occupational specialty which would have accommodated his physical limitations.  The applicant, however, never remained present for duty long enough to be an asset to his unit. In fact, after being diagnosed and given a profile for kyphosis while in confinement on 20 November 1969, he went AWOL again 9 days after being released from the stockade.

3.  The applicant's service, replete with numerous periods of AWOL, clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His medical condition was known and was not a factor in his discharge; therefore, it is not sufficiently extenuating as to mitigate his UD to a GD or HD.

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




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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 to amend the decision of the ABCMR set forth in Docket Number AR20080013277, dated 25 September 2008.


															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)                                         AR20080016718



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ABCMR Record of Proceedings (cont)                                         AR20080016718



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