IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090007867 


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, upgrade of his undesirable discharge to a medical discharge.

2.  The applicant states he only recently received information that was previously not available to him.  He states that in March 1968, he was deployed to the Republic of Vietnam where he was ordered to take anti-malaria drugs.  He had an allergic reaction and was hospitalized in Japan for 4 months.  He was given a permanent profile providing for no assignment to areas where malaria was prevalent.  He was subsequently assigned to Hawaii where he was falsely charged with disobeying orders, resulting in a court-martial and confinement at hard labor for 6 months.  He contends that this was done in order to give him an other than honorable conditions discharge.  He should have received a medical discharge with all of the benefits he was entitled to receive.  He contends that he should never have been deployed to the Republic of Vietnam because his allergy to the malaria serum had been discovered at Fort Leonard Wood, MO in 1967.  His discharge has disqualified him for financial aid to get a college education for a better life.  Soldiers who chose to use heroin and became addicts were honorably discharged with all benefits and a medical disability.  He feels that he is a victim of a conspiracy to cover up a medical mistake.  He was a 19 year old minor who could go to war but could not vote.  His adult life has been very hard because of the stigma and shame of his discharge.



3.  The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge);  
Standard Form (SF) 603 (Health Record - Dental), dated 18 September 1967; 
DA Form 8-274 (Medical Condition - Physical Profile Record), dated 29 May 1968; and SF 513 (Clinical Record - Consultation Sheet), dated 16 August 1968. 

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.  In September 1961, the applicant was arrested for malicious mischief.  He was lectured and released.  In June 1964, the applicant was arrested for petty theft and was again lectured.  In September 1964, the applicant was arrested for petty theft, lectured and released to the Illinois Youth Community.  He was subsequently arrested for drinking while a minor; for carrying a concealed weapon, and for carrying a false draft card.  He was fined $10.00.  In June 1966, the applicant was arrested for disorderly conduct.  

3.  On 12 September 1967, the applicant enlisted in the Regular Army (RA) for 
3 years.  The applicant's initial dental examination performed on 18 September 1967 at Fort Leonard Wood indicated that he was allergic to the malaria serum.

4.  On 21 October 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his place of duty.  The punishment included a forfeiture of $21.00 pay per month for 1 month.

5.  On 2 February 1968, the applicant completed his required training and he was awarded military occupational specialty (MOS) 51B (Carpenter).

6.  On 9 February 1968, the applicant departed Fort Leonard Wood for duty in the Republic of Vietnam.  He was assigned for duty as a construction carpenter with the 36th Engineer Battalion on 14 March 1968.
7.  On 20 March 1968, the applicant accepted NJP for leaving his appointed place of duty without authority.  The punishment included reduction to private (Pv2)/E-2 and 14 days of restriction and extra duty.

8.  On 29 April 1968, the applicant accepted NJP for leaving his appointed place of duty without authority.  The punishment included reduction to private (PV1)/
E-1, a forfeiture of $12.00 pay per month for 1 month, and 14 days of restriction and extra duty.

9.  On 10 May 1968, the applicant was assigned as a patient with the 106th General Hospital in Japan.  On 29 May 1968, he was given a physical profile restricting him from assignment to areas endemic to malaria or to high altitudes without pressurized cabins.  

10.  On 24 June 1968, the applicant was assigned for duty as a carpenter with U.S. Army Garrison, Schofield Barracks, HI.  

11.  On 6 September 1968, the applicant was convicted by special court-martial of failing to go at the time prescribed to his appointed place of duty (two specifications).  His sentence consisted of a forfeiture of $70.00 per month for
2 months.  

12.  An SF 513, dated 16 August 1968, stated that the applicant had recently been evacuated from the Republic of Vietnam because of an allergic reaction to malaria serum.  He was diagnosed with sickle cell trait with demonstrated glucose 6 phosphate dehydrogenase deficiency.  It was recommended that the applicant receive a permanent physical profile with limited duty to areas where malaria is not endemic.  It further stated that this condition was not a cause for discharge from active duty and it would not affect his fitness for retention. 

13.  On 25 October 1968, the applicant was convicted by a special court-martial of failing to go at the time prescribed to his appointed place of duty (two specifications) and of disobeying a lawful order.  His sentence consisted of reduction to the rank/grade of private (PV1)/E-1, forfeiture of $73.00 pay per month for 6 months, and confinement at hard labor for 6 months.  He served
62 days in confinement.

14.  On 25 November 1968, the applicant’s unit commander recommended he be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  The commander summarized the applicant's misconduct and subsequent punishments.  

15.  On 5 December 1968, the applicant consulted with counsel concerning his rights and waived consideration of his case by a board of officers, waived personal appearance, and waived representation.    

16.  On 26 December 1968, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued an Undesirable Discharge Certificate.

17.  Accordingly, on 18 January 1969, the applicant was discharged with an undesirable discharge, characterized as under other than honorable conditions.  He had completed 1 year, 1 month, and 29 days of creditable active service with 68 days of lost time.

18.  On 24 June 1971, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  After a careful examination of the applicant's record of service, the ADRB determined that the discharge was both proper and equitable.

19.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) 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 Certificate was normally considered appropriate.

20.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel  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.

21.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because of his medical condition.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The available evidence shows that the applicant was administered the malaria serum and that he was hospitalized due to an allergic reaction.  However, there is no substantiating evidence showing that any of his misconduct was due to his receiving this medicine.  In fact, the evidence clearly shows that the applicant's misconduct began well before he entered the Army and continued almost from the very start of his active duty.

5.  Based on the applicant’s record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his undesirable 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 has failed to submit evidence that would satisfy this requirement.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20090007867



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ABCMR Record of Proceedings (cont)                                         AR20090007867



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