IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090007878 


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, to have his records corrected to change his under honorable conditions discharge to a medical discharge.

2.  The applicant states that he sustained a severe back injury and has been 
100 percent disabled since.  The applicant also states that he has been denied service connected disability from the Department of Veteran Affairs (VA) on numerous occasions because he has no medical records.  He continues to state, in effect, that he was injured while an engineer at Fort Leonard Wood, MO, even though he can't remember the exact time the injuries occurred because he had a stroke in 2001, but believes it was in 1964 or 1965.  He states that his record erroneously shows "tent pole" in place of "telephone pole" and that is an admission that something happened.  He concludes by stating that he was denied by the VA because he did not check in within a certain time after he was discharged from the service but asks "how was he supposed to know that."

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his Enlisted Classification Record, and a copy of his Navy Honorable Discharge Certificate in support of his application.

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 submitted a copy of an Enlisted Classification Record which shows that he enlisted into the United States Navy on 25 May 1960.

3.  The applicant submitted a discharge certificate from the United States Navy which shows that he was honorably discharged on 13 July 1960.

4.  The applicant's record shows that he enlisted in the Regular Army on           13 February 1963.

5.  The applicant’s record contains a copy of Headquarters, 1st Training Regiment, Engineer, U.S. Army Training Center, Fort Leonard Wood, MO, Special Court-Martial (SPCM) Order Number 108, dated 27 Septebmer 1963, which documents the following charge, plea, and findings:

		Charge, Article 86, Uniform Code of Military Justice (UCMJ), with one specification:  
	
		Specification I:  On or about 2 September 1963, without proper authority, the applicant absented himself from his unit and remained absent until on or about 12 September 1963.  Plea:  Guilty.  Finding:  Guilty.  
		
6.  On 26 September 1963, sentence was adjudged.  The applicant was sentenced to a forfeiture of $25.00 per month for three months and to be confined at hard labor for 3 months (suspended).  

7.  On 10 October 1963, the applicant received a psychiatric evaluation and was diagnosed with passive aggression reaction, chronic, severe, unchanged manifested by somatic complaints, hysterical symptoms, acting out behavior, aggressiveness, impaired personal relationships, immaturity, impulsivity, and impairment of insight and judgment.  The psychiatric evaluation stated that the applicant indicated that he had been hospitalized at Fort Gordon, GA, because of his back and amnesia.  The examining official recommended that the applicant be separated from the Army in accordance with Army Regulation 635-209 (Personnel Separations).
8.  The applicant's record contained a Standard Form 513 (Clinical Record, Consultation Sheet) dated 25 September 1963, from the Physical Exam Section, U.S. Army Hospital, Fort Leonard, MO., which states that the applicant's medical records from Fort Gordon, GA, were unavailable. 

9.  The applicant's record contains a copy of a memorandum for the Department of the Army, Office of the Adjutant General, subject:  Verification of Prior Service, dated 22 January 1964, which states that the applicant received an honorable discharge from the U.S. Navy on 12 July 1960, for unsuitability and that he enlisted in the Regular Army on 13 February 1963, claiming no prior service.  The memorandum further states that the applicant concealed his discharge of
12 July 1960.

10.  On 29 January 1964, the applicant's commander submitted a recommendation, with 10 enclosures, that the applicant be discharged under the provisions of paragraph 13f of Army Regulation 635-206 (Personnel Separations – Enlisted Personnel) by reason of fraudulent enlistment.  The commander commented that the applicant's performance of duty had been excellent while in the unit but he had conflicts with noncommissioned officers concerning his attitude and manner.  However, the commander stated the applicant attempted to be cooperative but was not able to adjust to military supervision and recommended that he not be retained in the service.

11.  The commander's letter notifying the applicant he was processing him for discharge and the applicant's letter of acknowledgement are listed as Enclosures 2, 3 and 4 to the commander's letter recommending him for discharge.  

12.  On 19 February 1964, the appropriate authority directed orders be issued to void the applicant's enlistment contract under the provisions of paragraph 13f of Army Regulation 635-206 by reason of fraudulent enlistment.

13.  On 20 February 1964, the applicant was released from the custody and control of the Army and his period of service was voided.  His character of service was shown as general, under honorable conditions and he was issued a General Discharge Certificate.  His DD Form 214 reflects no active service because of his voided service.

14.  Section VII, paragraph 45b of Army Regulation 635-206, then in effect, prescribed procedures for processing fraudulent entry cases for misconduct by reason of fraudulent entry into the service.  It stated that fraudulent entry is the procurement of an enlistment, induction, or period of service through any deliberate material misrepresentation, omission, or concealment, which if known, might have resulted in rejection.  Any incident, which meets the foregoing, may be cause for discharge for fraudulent entry.  An under other than honorable conditions discharge (undesirable discharge) was normally considered appropriate unless the particular circumstances of the case warrant an honorable or general discharge.  

15.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501 (Standards of Medical Fitness) provides the standards for medical fitness for retention and separation, including retirement, and states, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for discharge by reason of fraudulent entry.  There is no evidence in the applicant's available medical record nor did the applicant submit any evidence which shows that he was injured by a tent pole or a telephone pole while assigned to Fort Leonard, MO.  However, the fact remains that he concealed his prior service in Navy at the time of his enlistment in the Regular Army on 13 February 1963.  In addition, there is no evidence to show the applicant was unable to perform his duties due to any medical condition.

2.  The evidence shows that all requirements of law and regulation appear to have been met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge was normally undesirable.  Due to the circumstances of the case, an honorable or general discharge was not warranted.

3.  In view of the foregoing, there is no basis for granting the applicant's request to change his administrative discharge to a medical discharge.   








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)                                         AR20090007878



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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