BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100019909 


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 earlier request for an upgrade of his under other than honorable conditions discharge to a general or a medical discharge.

2.  The applicant states he went home on leave and found his wife with another man.  He confronted them but they ran off.  When he went to her sister's house the next morning, his wife shot him five times with a pistol.  He went to a local doctor and upon return, somehow he got blamed for what happened and ended up being discharged.  He also states that there was great racial prejudice in the 1970s.  One third of the Soldiers of his race were given bad discharges.  He was not in his right mind when he signed the discharge papers.  He believes he was under post-traumatic stress disorder (PTSD) at the time.  He should have been given a diagnosis and treatment for his condition.

3.  The applicant did not provide any evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge. 

2.  Counsel states the circumstances that led up to his discharge were very painful.  During his military service, he returned home to find his wife with another person.  The next morning, his wife shot him.  His Army training saved him from a fatal shot.  Despite being shot, he was jailed and transported back to his unit.  

He was not given support or counseling.  Instead, he was discharged with an undesirable discharge.   He further adds the applicant suffered from racial prejudice at the time.

3.  Counsel did not provide any evidence.

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 AR20090018690, on 6 May 2010.

2.  The applicant submitted a new argument which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 2 December 1970 for 3 years.  Subsequent to completing basic combat training at Fort Ord, CA, he was reassigned to the 3rd Battalion, 4th Training Brigade, same station, for completion of advanced individual training.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 25 March 1971, for absenting himself from his appointed place of duty
* On 31 March 1971, for twice absenting himself from his appointed place of duty

5.  On 3 May 1971, he departed his unit in an absent without leave (AWOL) status; however, he surrendered to military authorities at Dallas, TX, on 24 May 1971.  He was transported through Fort Hood, TX, back to Fort Ord on 29 May 1971 and he was placed in pre-trial confinement. 

6.  On 1 June 1971, his command preferred court-martial charges against him for one specification of absenting himself from his place of duty on 9 April 1971, one specification of being AWOL from 3-24 May 1971, and one specification of willfully disobeying a lawful order on 17 April 1971.  

7.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible 

punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge he indicated he was making the request of his own free will and had not been subjected to any coercion by anyone.  He also acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  In connection with his request, he submitted a statement wherein he stated he came home on leave to find his wife with another man.  He solicited help from his commanding officer and the chaplain but no help was provided.  He then went AWOL in an effort to resolve his problems.  As soon as he received NJP, he no longer cared about the Army.  He thought his chain of command was out to get him and he did not care anymore.  He thought the Army would save time and money if he was discharged.

10.  On 25 and 30 June 1971, his immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  They all indicated the applicant had a negative attitude and he was unresponsive to counseling.   He was beyond rehabilitation and he had no potential for military service.

11.  On 16 August 1971, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, the applicant was discharged on 24 August 1971.

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service -in lieu of trial by court-martial with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.  This form confirms he completed 5 months and 17 days of creditable active service with 96 days of time lost.
13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  His available medical records show he was issued a temporary physical profile on 8 July 1971 that assigned him duty limitations for only 7 days.

15.  There is no indication in his available records that he suffered an injury or illness that would have warranted his entry into the Physical Disability Evaluation System (PDES).  His available records do not indicate he was issued a permanent physical profile that affected his duty performance, or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

17.  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.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's PDES 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 or her office, grade, rank, or rating.  It provides for MEBs, 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 (Standards of Medical Fitness), chapter 3.  If the medical board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

19.  Army Regulation 635-40, paragraph 3-1, states the mere presence of impairment does not, in 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

20.  Army Regulation 635-40, paragraph 4-3, states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a PEB if the General Court-Martial Convening Authority finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

21.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His narrative reason for discharge is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

2.  With respect to medical disability, the evidence of record shows he was issued a temporary physical profile on 8 July 1971 that restricted his activities for 7 days.  However, there is no evidence in his records and he did not provide any evidence that shows he suffered an injury or illness that led to the issuance of a permanent physical profile or that a determination was made by medical authorities and/or his commander that a condition warranted his entry into the PDES.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated for physical disability.

3.  In any case, the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that Soldier can be medically separated.

4.  There is no evidence in his records and he did not provide any evidence to that shows his extensive disciplinary problems were a result of racial prejudice. Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or 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 to amend the decision of the ABCMR set forth in Docket Number AR20090018690, dated 6 May 2010.



      ____________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)                                         AR20100019909



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ABCMR Record of Proceedings (cont)                                         AR20100019909



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