IN THE CASE OF:	  

		BOARD DATE:	        9 September 2009

		DOCKET NUMBER:  AR20090005994 


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, that his under other than honorable conditions discharge be changed to a medical discharge.

2.  The applicant states, in effect, he was told by his captain at the time he was getting a general discharge under honorable conditions; however, he instead received an undesirable discharge.

3.  The applicant states, in effect, that he was subjected to rampant racism in the Army from day one until he was allegedly discharged.  His company had Ku Klux Klan members in it.  His life was threatened more times than he can count.  They tried to kill him, they shot at him, and they fought with him.  He served        6 months in the brig for going absent without leave (AWOL).

4.  The applicant continues that his papers were stolen when his stepfather's car was taken in St. Louis on 10 January 1970.  He never saw what kind of discharge he was given.  It was in his dad's trunk when the car was stolen.

5.  The applicant states he was given some of his medical records; however, he still needs his records for the period September 1968 to December 1968 to show he received a medical discharge because he was to get his legs cut off from the knees down from Agent Orange contact.



6.  The applicant adds that he would like to have his case heard at the Supreme Court level.  He wants charges brought up on his old commanding officer of the 249th, C and D Companies, for white terrorism against him and other black Soldiers from 1968 to 1970 and racism, which is documented by papers and books, that caused his depression and migraine headaches.

7.  In support of his request, the applicant submitted 125 documents among which are a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter from the Department of Veterans Affairs (VA) denying his claim for service-connected benefits and compensation, dated 17 June 2008; five newspaper articles and a review related to racism and violence directed towards black servicemen in Germany during the late 60's and early 70's; assorted documents related to his medical condition (9 documents bear a date earlier than 9 January 1970, the applicant's discharge date, and 60 bear a date after this date), newspaper articles taken from a variety of sources; 35 VA Forms 21-4138 (Statement in Support of Claim) all dated 29 March 2009, in which he tells his story and asks for additional assistance not within the purview of this Board (e.g., assistance in the filling out of applications for the correction of his records, help in charging the Army with white terrorism, help to charge his former commanders for attempting to murder him twice, help in having all his benefits restored to him, compensation for the pain and suffering he has endured for over 39 years and still counting, and assignment of a lawyer to assist in taking his case all the way to the Supreme Court).

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 on 30 December 1967.  He successfully completed basic combat training at Fort Campbell, 

Kentucky, and advanced individual training at Fort McClellan, Alabama.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 54A (Chemical Operation Apprentice).  At the time of his discharge, the applicant held the MOS 51B (Carpenter).

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was assigned to duty in the U.S. Army Europe (Germany) on 18 May 1968.  The record shows the applicant did not complete his tour of duty in Germany.  There is no evidence the applicant served in another overseas country (i.e., Vietnam or South Korea) while he was on active duty.

4.  Although trained as a Chemical Operations Apprentice, Item 38 (Record of Assignments) of the applicant's DA Form 20 shows the applicant was never assigned to duties in this MOS.  The applicant performed duties as a Light Truck Driver (in the MOS 64A), Carpenter (in the MOS 51B) and as a Duty Soldier (in the MOS 57A).

5.  A Standard Form 502 (Clinical Record - Narrative Summary) dated 22 May 1968 shows that the applicant was admitted to the U.S. Army Hospital, Heidelberg, for swollen feet.  When he was admitted to the hospital, he reported he had experienced swollen feet for 2 days and the swelling had been preceded by itching and a tingling sensation.  The applicant also reported he had had painful knees since February 1968 with no history of joint disorder prior to February.  The final diagnosis of the applicant's chief complaint was angioneuratic edema of both feet, treated, cured, etiology undetermined.  The diagnosis was determined to be in the line of duty (LOD:  Yes) and it was believed not to have existed prior to his service (not EPTS).

6.  On 10 June 1968, while the applicant was away from his permanent unit of assignment, he was admitted to the U.S. Army General Dispensary-Darmstadt.  He was diagnosed to have arthritis, acute, right foot, of an unknown etiology.  The applicant was treated and was returned to duty on 14 June 1968.

7.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was advanced to the rank and pay grade of private first class, E-3, on 19 June 1968.  The applicant was promoted to this rank and pay grade while a member of Company D, 249th Engineer Battalion, Munster, Germany.  This was the highest rank that he would attain.  The record contains no documented acts of valor or service that would warrant special recognition.

8.  On 3 July 1968, the applicant was admitted to the U.S. Army General Hospital-Frankfurt.  He was diagnosed as having arthritis, acute, left foot, of an unknown etiology.  The applicant was treated and was returned to duty on        12 July 1968.

9.  On 26 July 1968, while the applicant was away from his permanent unit of assignment, he was once again admitted to the U.S. Army General Dispensary-Darmstadt.  He was diagnosed as having epididymitis (inflammation of the coiled tube at the back of the testicle), acute, bilateral, non-venereal, with the cause unknown.  The applicant was treated and was returned to duty on 28 July 1968.

10.  On 30 July 1968, the applicant was diagnosed as having angioedema of the right foot.  The applicant was found medically qualified for duty with temporary assignment limitations.  The applicant was given a T3 under the "L" character of the physical profile serial, he was restricted from performing strenuous physical activity, and was given instructions to report to a medical facility on 30 October 1968 for further physical profile evaluation or medical treatment or disposition.

11.  On 9 September 1968, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on 5 September 1968.  The imposed punishment was restriction to the company area for 14 days and to perform extra duties for 14 days.  The applicant appealed the punishment.  In his appeal, the applicant stated he felt the Article 15 was unjust because he was present for duty and was at the top of the stairs when the First Sergeant called "At ease" for work call.  He stated he was the only one to get an Article 15 even though others were absent from the noon formation and three others were absent from the 1400 hours formation.  None of the others got an Article 15.  He stated that he thought the noncommissioned officers were picking on him because of his profile.  So, anything he did, they added a little to it.  He thought they were trying to send him to the stockade.  Maybe, he thought, they were jealous because his doctor put him on profile and not them.

12.  On 18 September 1968, the applicant's appeal was denied by the Commander, 249th Engineer Battalion.  In his reply, the commander stated that the restriction would not exceed 14 days effective 9 September 1968.  The commander had essentially dismissed that period of time that had lapsed.

13.  Medically-related documents on file in the applicant's service record shows he presented himself for evaluation or treatment at clinics, dispensaries, or at a hospital 8 times during the period September 1968 through December 1968.  The dates of these visits were 12, 16, and 25 September, 30 October, 12 and 18 November (visits to two clinics), and 3 December 1968.  There is no reference 
to the potential amputation of the applicant's feet or legs in these records.  There is also no indication the applicant was pending referral to either a Medical Evaluation Board (MEB) or to a Physical Evaluation Board (PEB) in these records.

14.  On 3 December 1968, Special Orders Number 236, paragraph 7, was published authorizing the applicant to visit the United States and the Federal Republic of West Germany for 30 days.  The effective date of the authorization was 5 December 1968.

15.  Item 44 (Time Lost) of the applicant's DA Form 20 shows the applicant was reported as being AWOL from 5 January 1969 through 27 February 1969.  Item 38 of the applicant's DA Form 20 shows he was dropped from the rolls of the unit on 3 February 1969.  Item 38 also shows he was returned to military control as a Duty Soldier at Fort Riley, Kansas, on 28 February 1969.

16.  On 11 March 1969, the applicant was reported as being AWOL from Fort Riley.  He was dropped from the rolls of the Special Processing Company, Fort Riley, on 19 March 1969.  Item 38 of the applicant's DA Form 20 shows the applicant was returned to military control as a Duty Soldier at Fort Leonard Wood, Missouri, on 7 August 1969.

17.  On 14 August 1969, Special Orders Number 226, paragraph 126, were published by Headquarters, US Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood.  The applicant was assigned to the Special Processing Company, Fort Leonard Wood, with an effective date of 7 August 1969.

18.  On 7 August 1969, the applicant was placed in pretrial confinement at Fort Leonard Wood.  The applicant's pretrial confinement was changed to confinement on 13 October 1969.  He remained in confinement until 18 December 1969.

19.  On 2 September 1969, the applicant underwent a psychiatric evaluation.  The applicant was diagnosed as having a passive-aggressive personality disorder, severe, by an Army psychiatrist.  The condition represented a character and behavior disorder described in Army Regulation 40-501 (Standards of Medical Fitness).  The condition was ruled not medically disqualifying but it was stated that it should be considered in the individual's further training or administrative disposition by the unit commander.  While undergoing his evaluation, the applicant stated he had been AWOL on two occasions and was at the time pending court-martial action.  He stated that he had received many Article 15s.  He stated that the reason for the Article 15 and his AWOLs, aside from the fact he did not like to take orders, was because of his foot difficulties.  He stated he had a profile for this but people continually feel that he is faking and subject him to work that he feels is unnecessary.  The applicant reported to the psychiatrist that prior to coming into the service, he had dropped out of high school in the 11th grade because of fighting.  He stated that he had been involved in many fights and riots and had been held on theft charges while a civilian.  The applicant, the psychiatrist noted, had been counseled in the past with no results.  The psychiatrist recommended the applicant be eliminated from the Army under the provision of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) and cleared him for any other administrative decision deemed appropriate by command.

20.  On 11 September 1969, the applicant underwent a medical examination for the purpose of a possible discharge under the provisions of Army Regulation 635-212.  The applicant was found to have a 3 inch burn scar on his right forearm and he was diagnosed as having a passive-aggressive personality disorder, severe.   The applicant was given a physical profile of P-1, U-1, L-1, H-1, E-1, and S-1.  The applicant was found qualified for military service.

21.  On 4 October 1969, the applicant received a special court-martial.  He was found guilty of absenting himself from his unit in Germany on 5 January 1969 and remaining so absent until 28 February 1969 and for absenting himself from his unit, the Special Processing Company at Fort Leonard Wood, on 11 March 1969 and remaining so absent until on or about 7 August 1969.  The applicant was sentenced to forfeit $82.00 pay per month for 5 months and to be confined at hard labor for 5 months.  The sentence was approved and ordered executed on 13 October 1969.

22.  On 18 December 1969, Special Court-Martial Order Number 1557 was published by Headquarters, Special Troops, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood.  The unexecuted portion of the sentence to confinement at hard labor for 5 months was suspended for 3 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

23.  The discharge "packet" that was prepared in the separation of the applicant from the Army is not available in his service personnel record and therefore is not available for the Board's review.

24.  On 9 January 1970, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness - involved in frequent incidents of a discreditable nature with civil or military authorities.  His service was characterized as under other than honorable conditions.  The applicant signed in Item 32 (Signature of Person Being Transferred or Discharged) of the DD Form 214.  At the time of his discharge, the applicant had completed 1 year, 1 month, and 9 days of net active service with time lost for the following periods:  5 January 1969 through 27 February 1969 due to AWOL, 11 March 1969 through 6 August 1969 due to AWOL, 7 August 1969 through 12 October 1969 due to pre-trial confinement, and 13 October through 18 December 1969 due to confinement.  The total of his time lost was 337 days.

25.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

26.  Army Regulation 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 Army Regulation 635-40.

27.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) 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 Army Regulation        40-501 , chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

28.  PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

29.  Army Regulation 635-40 states in chapter 4 that a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless:  (a) The investigation ends without charges, (b) The officer exercising proper court-martial jurisdiction dismisses the charges; or (c) The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

30.  Army Regulation 635-212 established policy and provided procedures and guidance for eliminating enlisted personnel who were found to be unfit or unsuitable for further military service.  Individuals separated by reason of unfitness would be furnished an undesirable discharge certificate except that an honorable or general discharge certificate could be awarded if the individual being discharged had been awarded a personal decoration or if warranted by the particular circumstances in a given case.

31.  When being considered for separation under the provision of Army Regulation 635-212, an individual had the right to consult with legal counsel and to be advised of the basis for the contemplated action.  Subsequent to this counseling, the individual had the right to request or waive consideration of their case by a board of officers, request or waive a personal appearance before a board of officers, to submit a statement in their own behalf and to request or waive representation by appointed military counsel or civilian counsel at their own expense.  The individual was also required to submit a statement to the unit commander of their understandings - that they may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to them and that as the result of issuance of an undesirable discharge under conditions other than honorable they could be ineligible for many or all benefits as a veteran under both Federal and State laws and that they could expect to encounter substantial prejudice in civilian life.

32.  Agent Orange is a herbicide, or defoliant, which was used in Vietnam to kill unwanted plant life and to remove leaves from trees which otherwise provided cover for the enemy.  Other herbicides were also used in Vietnam to a much lesser extent.  Republic of Korea forces used small amounts of Agent Orange in 1968-69 in the area from the Civilian Control Line in Korea to the southern boundary of the Demilitarized Zone.  According to the Department of Defense, only Republic of Korea troops were involved in the actual spraying of Agent Orange in Korea; however, it is possible that some U.S. Military personnel may have been exposed to herbicides in Korea.  Agent Orange and other herbicides used in Vietnam were tested or stored elsewhere, including many military bases in the United States (Source:  Department of Veterans Affairs, Agent Orange Brief, August 2005 edition).

DISCUSSION AND CONCLUSIONS:

1.  In his application, the applicant stated he would like the medical discharge he would have received for the injuries he got from spraying the Agent Orange chemical for the Army.  There is no evidence in the applicant's records to show that he served in a geographical area, either in Korea or in Vietnam, where Agent Orange was used and where the possibility existed that he could have been exposed to it.  The applicant was assigned to Germany after completion of his advanced individual training; however, he did not complete his overseas tour of duty.

2.  The evidence also shows that even though the applicant was trained as a Chemical Operations Apprentice in the MOS 54A he did not perform duties related to this MOS.  While in Germany, the applicant performed the duties of a Light Truck Driver (MOS 64A), Carpenter (MOS 51B) and when he returned to military control after an extended AWOL, as a Duty Soldier (MOS 57A).  The likelihood that he was exposed to Agent Orange while performing in these duty position is minimal at best.

3.  There is no evidence in the applicant's service record to suggest that he was referred to and was being considered for discharge by either an MEB or a PEB.  The evidence shows that he was hospitalized in May (once), June (once), and in July (twice) and was treated for medical conditions related to his feet, legs, knees, and testicles.  The evidence does show that on 30 July 1968, he was diagnosed with angioedema of the right foot; however, he was found qualified for duty with temporary assignment limitations.  He was given a temporary profile with an expiration date of 30 October 1968 when he was instructed to return to a medical treatment facility for further physical profile evaluation or medical treatment or disposition.  After each period of hospitalization, the applicant was returned to duty without an apparent referral to a medical evaluation board or physical evaluation board.

4.  The evidence shows that the applicant apparently performed in a satisfactory manner until September 1968 when he received nonjudicial punishment for absenting himself from his place of duty without authority on 5 September 1968.  He appealed the punishment that was imposed.  In his appeal, the applicant stated he felt the Article 15 was unjust because he stated he was the only one to get an Article 15 even though others were absent from the noon formation and three others were absent from the 1400 hours formation.  He also stated that he thought the noncommissioned officers were picking on him because of his profile.  He thought they were trying to send him to the stockade.  Maybe, he thought, they were jealous because his doctor put him on profile and not them.

5.  The evidence shows that the applicant was given authorization to visit the United States on ordinary leave in December 1968.  The evidence further shows that when the authorization had expired, he did not return to his duty station in Germany.  He was reported AWOL and was subsequently dropped from the rolls of his organization.  While in the United States and before his eventual discharge from the Army, the applicant again absented himself without authority for an extended period of time from the unit to which he had been returned to military control - Fort Riley.  When he was again returned to military control, he was placed in pre-trial confinement and received a court martial for his absences.

6.  The applicant's discharge "packet" is not available for the Board's review; however, the evidence, a completed DD Form 214, shows he was discharged with his service characterized as under other than honorable conditions, for unfitness - involved in frequent incidents of discreditable nature with civil or military authorities, in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-212.

7.  If disability processing was initiated as the applicant contends, the regulatory authority in effect at the time stated that enlisted Soldiers could not continue physical disability processing when action has been started under a provision which authorized a characterization of service of under other than honorable conditions.

8.  The applicant contends that his papers were stolen when his stepfather's car was taken in St. Louis and that he never saw what kind of discharge he was given; however, the evidence shows that the applicant signed his DD Form 214 on the date he was discharged and therefore knew or should have known the type of discharge he was being given.

9.  In the absence of evidence to the contrary, it is presumed that the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant's undesirable discharge accurately reflects his overall record of service.

10.  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 sufficient 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 for correction of the records of the individual concerned.




      _______ _  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)                                         AR20090005994





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ABCMR Record of Proceedings (cont)                                         AR20090005994



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