IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100021119 


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, an upgrade of his undesirable discharge to an honorable discharge due to medical conditions.

2.  He states his record contains the following errors and injustices:

	a.  His DA Form 24 (Service Record) shows he served from 25 August 1959 to 25 August 1962 and his discharge date of 16 November 1960 should be 16 November 1961.

	b.  his DA Form 20 (Enlisted Qualification Record) shows that he served in Korea from 22 March 1960 through 6 April 1961.

	c.  His records show he was absent without leave (AWOL) four times, but he was only AWOL once and 1 hour late returning from a weekend pass.

	d.  His psychiatric evaluation is wrong and was fabricated by the doctor.

	e.  In the latter part of 1959 he served on fire watch during a storm in wooden barracks that were weak and this alone should entitle him to 100-percent disability.

	f.  While at Fort Riley, KS, and Camp Funston, KS, he reinjured his back, knee, and received a concussion caused by a large caliber tank being fired because he was not wearing hearing protection.

	g.  While at Fort Bragg, NC, he received a serious back injury as a result of being kneed by his training sergeant.

	h.  He reported all of his injuries to his chain of command; however, no one seemed to care.

	i.  He has 28 injuries or conditions as a result of being in the military.

	j.  He feels he should be given an honorable discharge based on his medical conditions with back pay retroactive to January 1960, a 100-percent disability rating, be certified as 100-percent unemployable, and receive a pension at 100 percent.

3.  He provides:

* a 4-page self-authored attachment
* page 1 of his DD Form 4 (Enlistment Record- Armed Forces of the United States)
* his DA Form 24
* one page of his DA Form 20
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a DA Form 26 (Record of Court-Martial Conviction) 
* Special Court-Martial Order 388, dated 27 September 1960
* two Standard Forms 88 (Report of Medical Examination)
* two Standard Forms 89 (Report of Medical History)
* his separation documents
* a memorandum from the Army Discharge Review Board (ADRB), dated 9 October 1962

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 DD Form 4 shows he enlisted in the Regular Army on 25 August 1959 for a period of 3 years.

3.  His DA Form 24 shows:

* Section 4 (Chronological Record of Military History) that he served from 25 August 1959 through 16 November 1960
* Section 5 (Service Outside Continental United States) –

* 22 March 1960, departed United States
* 12 April 1960, arrived in Korea
* 18 May 1960, departed Inchon, Korea
* 21 May 1960, arrived in the United States

* Section 6 (Time Lost) –

* 25 January to 25 January 1960, AWOL
* 20 June to 31 August 1960, AWOL
* 1 September to 22 September 1960, confinement
* 15 October to 17 October 1960, AWOL
* 20 October to 15 November 1960, confinement

4.  Item 29 (Foreign Service) of his DA Form 20 shows service in Korea from 22 March 1960 through 6 April 1961 with "6 April 1961" annotated in pencil.

5.  He was convicted by a special court-martial for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 20 June to 31 August 1960.

6.  He was convicted by a summary court-martial for violating Article 86 of the UCMJ by being AWOL from 15 to 17 October 1960.

7.  He submitted a Standard Form 88, dated 24 August 1959, which shows scars on his face/lacerations from an automobile accident in item 74 (Summary of Defects and Diagnoses).  This form was rendered during the physical medical examination at the time of his enlistment.

8.  He submitted a Standard Form 89, dated 24 August 1959, which states, "I believe I am in good health" in item 17 (Statement of Examinees' Present Health in Own Words).

9.  He submitted a Standard Form 513, dated 17 March 1960, which shows he requested a medical discharge after being told he could be medically discharged for Osgood-Schlatter disease.

10.  He submitted a Standard Form 88, dated 30 September 1960, which shows in item 37 (Clinic Evaluation) he indicated:

* he had a lump over his tibial tubercle (history of Osgood-Schlatter disease)
* he had a scar on his canathus (corners where upper and lower eyelids meet)
* he had a scar on the bridge of his nose extending into his right brow

11.  He submitted a Standard Form 89, dated 30 September 1960, which shows he indicated "migraine headaches, arms and right side of chest, back and bone disease in right knee" in item 17.

12.  Item 44 (Dental) of his Standard Form 88, dated 30 September 1960, shows five missing teeth and three restorable teeth.

13.  His record shows he underwent a mental status evaluation on 14 September 1960.  The military physician stated the applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right.  He had the capacity to understand and participate in any board proceedings contemplated.  There were no diseases or defects in him which were sufficient to warrant separation through medical channels.  He was diagnosed with moderate, chronic, inadequate personality manifested by poor judgment, poor adaptation to his environment, emotional instability, and inability to use his energies and capacities constructively.  His predisposition was great.  "Stress – minimal, routine military duty.  Impairment – great.  Line of duty – no – existed prior to service."  The examining physician recommended administrative separation or any other administrative actions deemed necessary by the commander.

14.  On 29 September 1960, he acknowledged that his unit commander notified him that he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-208 (Personnel Separations – Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) for unfitness with an undesirable discharge characterized as under other than honorable conditions.

15.  He was advised of his rights and the impact of the discharge.  He declined his right to consult with legal counsel and waived his right to submit a statement in his own behalf and to have a hearing before a board of officers.

16.  On 30 September 1960, he was seen for a final required medical examination which did not reveal any defects sufficient enough to warrant disposition through medical channels.  He was also cleared from the psychiatric standpoint.

17.  On 24 October 1960, his unit commander recommended his separation from the service for unfitness with the issuance of an undesirable discharge.  The commander's action was based on the recommendation of the psychiatrist together with the fact that the applicant had been tried and convicted by two separate courts-martial, his utter disregard for military rules and regulations, and his established pattern of shirking.

18.  On 27 October 1960, the intermediate commander reviewed the proposed discharge action and recommended approval.

19.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for his discharge which shows: 

* he was discharged under the provisions of Army Regulation 635-208 with a separation program number of 28B (Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities)
* his service was characterized as under other than honorable conditions
* he was issued an Undesirable Discharge Certificate
* he had 126 days of time lost due to AWOL and confinement
* he completed 10 months and 16 days of creditable net active service during this period
* he held the rank/grade of private/E-1 at the time of his discharge

20.  On 3 October 1962, the ADRB determined he had been properly discharged and denied his request for an upgrade of his discharge.

21.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides the standards for medical fitness for retention and separation, including retirement, and states that the medical treatment facility commander with 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.

23.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

24.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge due to medical conditions so that he may be eligible for medical benefits was found to lack merit.

2.  The ABCMR does not correct records or upgrade discharges solely for the purpose of establishing eligibility for benefits.  Granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care should be addressed to the Department of Veterans Affairs.  Additionally, every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  The applicant's medical records show he received treatment for tibial tubercle. However, there is no evidence showing this condition or any of his injuries or illnesses occurred while he was on active duty or were the cause or substantially-contributing cause of his misconduct.  His record is void of any evidence and he has not provided any evidence showing he had an unfitting medical condition at the time of his discharge.

4.  The applicant was not discharged based on one incident.  He was discharged based on frequent incidents of a discreditable nature with military authorities, including five periods of lost time due to AWOL and confinement, one special court-martial, and one summary court-martial.

5.  The evidence shows he was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general under honorable conditions 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 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)                                         AR20100021119



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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