IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090005689 


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, in effect, reconsideration of his request that his under other than honorable conditions discharge be upgraded and correction of his records to show he was medically discharged.

2.  The applicant states, in effect, that everybody deserves a second chance, but he has not been given a second chance.  

	a.  The applicant reiterates the argument he made in his original application stating that the Army sought to reassign him to another duty station; however, he wanted to get out of the Army for personal reasons and because he was having seizures.  He again states that neither his seizures nor the replacement of the tip of his middle finger on his right hand were introduced as evidence in his court-martial or discharge proceedings, he was not provided with legal counsel, and he was not afforded the opportunity to see a chaplain.

	b.  The applicant states that his medical records should be taken into consideration; however, the date he had a grand mal seizure is incorrectly recorded on the medical record as 3 June 1977.  He adds his seizure actually occurred on the same day he allegedly committed assault against another Soldier (i.e., on 7 July 1975).  The applicant also states he should have been recommended for a medical discharge at the time he had the seizure.

   c.  The applicant states that some of the dates in the Record of Proceedings do not coincide with his enlistment and period of military service.  The applicant also states he was 16 years of age when his mother provided her consent for him to enlist in the U.S. Army.  He further states that there was no chain of command for him to use, he did not have legal counsel or an advocate, nor a chaplain to confide in during the legal proceedings against him.  He also states that the absence of a defined chain of command and his medical problems were not mentioned at his court-martial.  The applicant adds, in all instances, he was following the orders that he was given and he was not absent without leave.

   d.  The applicant  states that other Soldiers and noncommissioned officers attempted to inflict both physical and sexual abuse on him; however, he did not  mention any of this at his court-martial because he was afraid of what would happen to him.

   e.  The applicant states that over the years past Presidents of the United States have pardoned hundreds of draft dodgers.  He adds that he tried hard to be a good Soldier, but it was not easy because English is his second language. He concludes by stating he has not been pardoned even though he chose to serve his country while others dodged the draft.

3.  The applicant provides, in support of his request, an 8-page self-authored statement, undated; 22 DA Forms 3686 (JUMPS - Army, Leave and Earnings Statements (LES)), for the months of September and December 1974, January through August, October, and November 1975, and January through August, October, and November 1976; Declaration and Registration of Informal Marriage, Bell County, Texas, recorded on 15 June 1976; and Application for Arrears in Pay, dated 27 January 1997.

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 AR20080015238, on 2 December 2008.

2.  The applicant provides new arguments that will be considered by the Board.

3.  The applicant enlisted in the Regular Army for a period of 3 years on
5 September 1974.  The highest grade he attained during his military service was private first class (PFC)/pay grade E-3.  The applicant was discharged on
23 December 1976, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 (Separation for Unfitness and Unsuitability), paragraph 13-5a(1), for misconduct, which fall under the category of unfitness based on frequent incidents of a discreditable nature with civil or military authorities. 
4.  ABCMR Docket Number AR20080015238, Record of Proceedings, dated
2 December 2008, Consideration of Evidence, paragraph 3a, states, “on 8 July 1975, for committing an assault against another Soldier by striking him with a steel pole, on or about 7 July 1974 (sic).  His punishment consisted of forfeiture of $89.00 pay for one month, 14 days of restriction, and reduction to private (PV2) (suspended for 90 days).  On 10 July 1972 (sic), the applicant appealed his punishment and on 17 July 1972 (sic), the next superior authority approved a partial grant in that he suspended that portion of the punishment of reduction to PV2/E-2 for 90 days.  However, on 26 August 1972 (sic), the suspension of reduction to PV2/E-2 was vacated and the unexecuted portion of the punishment was ordered executed.”

5.  ABCMR Docket Number AR20080015238, Record of Proceedings, dated
2 December 2008, Consideration of Evidence, paragraph 7, documents that the applicant consulted with counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, waived representation by counsel, and elected not to submit statements in his own behalf.  In addition, paragraph 6 and paragraphs 8 through 10 document the actions taken by the applicant’s chain of command in the processing of his administrative separation.

6.  ABCMR Docket Number AR20080015238, Record of Proceedings, dated
2 December 2008, refers to a copy of a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 3 June 1977.  This document shows the applicant was seen at the Observation Clinic, Darnall Army Hospital, Fort Hood, Texas, and, in pertinent part, contains the entry "@ [at] 1400 was given 4.8 mil. units procaine penn. immediately following patient went into what appeared to be a Grand Mall Sesuire (sic) which lasted 5 to 7 min[utes]."  In the Patient's Identification section of the SF 600, in addition to the applicant's name it also contains, in pertinent part, the entry "SFC James A  4 APR 78."

7.  There is no evidence that the applicant was referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB).  There is also no evidence the applicant was found unfit because of physical disability.

8.  In support of this application for reconsideration, the applicant provides the following documents.

   a.  LES's for the months of September and December 1974, January through August, October, and November 1975, and January through August, October, and November 1976.  These documents, in pertinent part, substantiate the applicant’s period of military service and pay.  The DA Forms 3686 for the months of August, October, and November 1976, in pertinent part, show that the applicant was not paid from the end of month (EOM) August to EOM November 1976 because of a balance that was due to the United States. 

   b.  Declaration and Registration of Informal Marriage, Bell County, Texas, recorded on 15 June 1976, that shows the applicant and Ida M. (W____)  S______ were married on or about November 1974.
   
   c.  Application for Arrears in Pay, dated 27 January 1997, that shows a
DD Form 137 was forwarded to the Finance Center on 10 November 1976 for a Basic Allowance for Quarters claim for the applicant’s common law wife and that there was no approval or disapproval rendered at the time of his discharge.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), of this Army regulation, in pertinent part, provides that the mere presence of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to a MEB.

13.  Army Regulation 15-185 (ABCMR) 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 contends, in effect, his request that his discharge be upgraded and his records corrected to show he was medically discharged should be reconsidered.  He contends the date that he had a grand mal seizure is incorrectly recorded in his medical records as 3 June 1977 when it actually occurred on 7 July 1975, neither his seizures nor the replacement of the tip of his middle finger on his right hand were introduced as evidence in his court-martial or discharge proceedings, he did not have a defined chain of command, and he was not provided with legal counsel or afforded the opportunity to see a chaplain. He also contends the Record of Proceedings do not coincide with his enlistment and period of military service, other Soldiers and noncommissioned officers attempted to inflict both physical and sexual abuse on him, he has not been pardoned even though he chose to serve his country while others dodged the draft, and he should have been recommended for a medical discharge at the time he had a seizure.

2.  ABCMR Docket Number AR20080015238, Record of Proceedings, dated
2 December 2008, Consideration of Evidence, paragraph 3a, contains typographic errors with respect to the years that follow the correct date of "8 July 1975."  Thus, the applicant’s contention that some of the dates in the Record of Proceedings do not coincide with his enlistment and period of military service is accurate.  In this regard, paragraph 3a should read, "on 8 July 1975, for committing an assault against another Soldier by striking him with a steel pole, on or about 7 July 1975.  His punishment consisted of forfeiture of $89.00 pay for one month, 14 days of restriction, and reduction to private (PV2) (suspended for 90 days).  On 10 July 1975, the applicant appealed his punishment and on\
17 July 1975, the next superior authority approved a partial grant in that he suspended that portion of the punishment of reduction to PV2/E-2 for 90 days.  However, on 26 August 1975, the suspension of reduction to PV2/E-2 was vacated and the unexecuted portion of the punishment was ordered executed."
   
3.  The evidence of record indicates the applicant was given 4.8 milliliter units of "procaine penn." and immediately following he went into what appeared to be a grand mal seizure which lasted 5 to 7 minutes at the Observation Clinic, Darnall Army Hospital, Fort Hood, Texas, on 3 June 1977.  It is noted that this date
(i.e., 3 June 1977) is more than five months after the applicant's discharge date. While the date on the SF 600 is not easily explained, there is no evidence of record, and the applicant provides insufficient evidence, to show that this grand mal seizure occurred on 7 July 1975.  Moreover, it is not reasonable to conclude that the attending medical official erroneously post-dated the SF 600 with a date that would be almost two years later than the medical event he was then observing.  Thus, the applicant provides insufficient evidence to support his contention that this medical event occurred on 7 July 1975.

4  The applicant contends that his seizures and the replacement of the tip of his middle finger on his right hand were not introduced as evidence in his court-martial or discharge proceedings, he did not have a defined chain of command, and he was not provided with legal counsel or afforded the opportunity to see a chaplain.

   a.  It cannot be determined if such evidence was introduced at the applicant’s summary court-martial.  However, the applicant's contention concerning his seizure and injury to his finger relates to evidentiary/mitigating matters that could have been raised in the court-martial review process and furnish no basis for recharacterization of his discharge.

	b.  The evidence of record shows that the applicant elected not to submit statements in his behalf when notified by his immediate commander of his pending separation.  In this regard, the applicant effectively waived his opportunity to introduce evidence of any medical conditions he deemed pertinent to his separation processing.  In addition, the evidence of record shows that the applicant was afforded the opportunity to consult with counsel when he was notified of his pending separation.  Thus, the evidence of record does not support the applicant’s contentions that he did not have a defined chain of command and he was not provided with legal counsel.

   c.  There is no evidence the applicant met with a chaplain.  However, this does not demonstrate that the applicant was not afforded the opportunity to meet with a chaplain.

   d.  Therefore, in view of all of the foregoing, there is no basis for correcting the applicant’s records in this instance.

5.  The applicant contends that other Soldiers and noncommissioned officers attempted to inflict both physical and sexual abuse on him.  However, there is no evidence of record, and the applicant provides insufficient evidence, to support these contentions.

6.  There is no evidence of record, and the applicant provides insufficient evidence, that shows he was medically or physically unfit for retention in military.  Thus, the evidence of record does not support the applicant’s contention that he should have been medically discharged.  Therefore, the applicant is not entitled to correction of his records to show he was medically discharged.

7.  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 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 AR AR20080015238, dated 2 December 2008.



      _______ _   X_______   ___
               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)                                         AR20090005689



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ABCMR Record of Proceedings (cont)                                         AR20090005689



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