IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100028265 


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:

   a.  Removal of all disciplinary/negative actions from his records as follows:

* removal of Summary Court-Martial Order Number 2, dated 23 January 1967 from his Military Personnel Records Jacket (MPRJ)
* removal of DA Forms 2627-1 (Record of Proceedings Under Article 15 UCMJ (Uniform Code of Military Justice)), dated 3 April 1967 and 24 May 1967
* removal of a Certificate of Unsuitability for Enlistment/Reenlistment and allied documents

	b.  Removal of the Reenlistment Eligibility (RE) Code of 3 from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

   c.  Restoration of his rank/grade to specialist four (SP4)/E-4.

   d.  A medical discharge.

2.  The applicant states, in effect:

* his chain of command violated his constitutional rights and due process
* the disciplinary actions taken against him was not supported by the UCMJ or evidence
* some of the records were falsified and entered into his service records
* his medical issues were not addressed or acted upon by his chain of command
* his chain of command suppressed evidence concerning various medical conditions that were the result of an automobile accident
* the Certificate of Unsuitability is unsupported by facts and did not follow the UCMJ
* he did not meet medical retention standards due to high blood pressure, hypertensive heart disease, kidney disease
* the Department of Veterans Affairs (VA) also suppressed, altered, and attempted to destroy medical evidence related to his medical issues 
* the Army suppressed, altered, and destroyed Federal records to conceal the truth about his condition
* there has been an ongoing conspiracy between the VA and the National Personnel Records Center (NPRC) since at least 1993 regarding his claim
* the use of the VA as custodian of Army records allows the Army to extend its authority over veterans' rights 

3.  The applicant provides:

* Self-authored legal brief (43 pages)
* Copy of his service record
* Case Number 05VC-0819, Applicant vs U.S. Attorney General
* VA Form 21-526e (Veteran's Application for Compensation or Pension at Separation from Service)
* Multiple correspondence written between him the VA and Congressional Representatives
* Multiple letters written between him and the NPRC
* 2004 Social Security Statement
* Letter written to the U.S. District Court for the District of Columbia

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 for 3 years on 24 July 1964.  He completed basic combat and advanced individual training and he was initially awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was also awarded the:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Expert Marksmanship Qualification Badge with Recoilless Rifle Bar 

3.  He also completed the Basic Airborne Course at Fort Benning, GA, and was awarded the Parachutist Badge.  He then completed the Military Policeman Course at Fort Gordon, GA, and he was awarded MOS 95B (Military Police).

4.  On 28 January 1965, he was assigned to the 118th Military Police Company, Fort Bragg, NC, and on 15 March 1965, he was awarded the Expert Marksmanship Qualification Badge with Pistol Bar (.45 caliber).

5.  On 24 March 1965, the 118th Military Police Company, Fort Bragg, NC, published Unit Orders Number 30, promoting the applicant to private first class (PFC)/E-3. 

6.  On 4 October 1965, the applicant's company commander requested that the applicant's primary MOS be changed and that he be reassigned.  The bases for the request were the applicant failed to meet the standards of the unit and the standards of a military policeman.  He required constant supervision by his platoon sergeant and squad leader to perform his assigned duties.  The applicant expressed that he did not desire to be a military policeman.  His chain of command felt that all efforts to bring the applicant up to the acceptable standards had been exhausted.

7.  The request was approved by the applicant's chain of command.  The applicant reverted back to MOS 11B and was assigned to Company C, 2nd Battalion, 504th Infantry, Fort Bragg, NC.

8.  He served with this unit in the Dominican Republic, as part of a unit permanent change of station, from on or about 7 November 1965 to 9 August 1966.  

9.  On 9 February 1966, while serving in the Dominican Republic, he was reassigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 504th Infantry, and on 20 May 1966, HHC, 2nd Battalion, 504th Infantry, published Unit Orders Number 29, promoting the applicant to SP4/E-4.

10. On 3 October 1966, he was admitted to Womack Army Hospital, Fort Bragg, NC, after he complained of a cough for 5 days.  A chest examination revealed a negative finding except for a few fine, basilar rales.  Laboratory work shows normal flora.  Chest film demonstrated left lower lobe pneumonia which had cleared.  

11.  On 4 October 1966, he was issued a DA Form 8-274 (Medical Condition - Physical Profile Record) of a temporary nature and he was assigned the functional limitation of "No assignment to isolated area where definitive medical care was not available."  As the applicant was feeling well, he was discharged from the hospital and returned to duty on 18 October 1965. 

12.  On 24 October 1966, he was issued a DA Form 8-274 that showed he was not medically qualified for parachute jumping due to low back syndrome.  He was assigned the functional limitation of "No parachute jumping" and returned to duty.

13.  On 15 December 1966, the applicant's immediate commander requested that he be reassigned to non-airborne duty because of his permanent airborne physical disqualification.  Accordingly, on 15 December 1966, he was removed from parachute status, but he was ordered retained in the unit for further reassignment instructions. 

14.  On 5 January 1967, in a written statement, the applicant's immediate commander indicated that the applicant received unsatisfactory conduct and efficiency ratings due to his very poor attitude since returning from the Dominican Republic in August.  His performance of duty had been substandard and his respect for authority had been steadily declining.

15.  On 5 January 1967, he departed his unit in an absent without leave (AWOL) status.  He returned on 16 January 1967.

16.  His records contain a DA Form 2627-1, initiated on 17 January 1967, that shows the applicant's commander began the process of imposing nonjudicial punishment (NJP) against him under the provisions of Article 15, UCMJ for the above period of AWOL.  The applicant demanded trial by a court-martial but he did not submit matters in extenuation, mitigation, or defense. 

17.  On 23 January 1967, he pled not guilty at a summary-court martial to the charge and specification of violation of Article 86 of the UCMJ, in that he was AWOL from 5 to 16 January 1967.  The court found him guilty of the charge and specification and sentenced him to be reduced to private (PV2)/E-2 and a forfeiture of $94.00 pay for 1 month.  The convening authority approved the sentence on 23 January 1967 and ordered it executed.
18.  On 30 January 1967, the applicant's immediate commander initiated a Certificate of Unsuitability for Enlistment/Reenlistment against the applicant.  The immediate commander stated the applicant had been a substandard Soldier and should be barred from enlistment/reenlistment.  His court-martial conviction, coupled with his repeated misconduct (missing formation and shirking of his duties) was not in keeping with the standards of the service.  He had been counseled on numerous occasions and he was advised of the consequences of his actions, to no avail.  

19.  On the same date, the immediate commander certified that the applicant read the Certificate of Unsuitability for Enlistment/Reenlistment in the presence of another officer and the platoon sergeant and he stated he understood the allegations made against him but elected not to make a statement and refused to sign the statement of acknowledgement. 

20.  On 30 January 1967, the applicant was issued a DA Form 8-274 that showed he was not medically qualified for full military duty as evidenced by a medical examination and a review of health records due to high blood pressure.  He was assigned the physical limitations of "No assignment to an isolated area where definitive medical care was not available" and "No assignment to airborne units."  However, the military doctor did not indicate if the applicant was unable to perform the duties required of his grade or specialty.

21.  On 31 January 1967, the Chief, Cardiovascular Services, Womack Army Hospital, Fort Bragg, NC, indicated the applicant had been found to have had mild blood pressure elevation.  Prior evaluations did not reveal him to be hypertensive.  He was previously admitted to the hospital on 28 September 1966 and underwent numerous studies/evaluations; however, none revealed other than mild hypertension.  He was properly profiled and started on medication.  He was instructed to obtain a follow-up through the dispensary regarding the blood pressure but he did not do that.  

22.  On 7 February 1967, consistent with the battalion and brigade commander's recommendations, the approval authority approved the Certificate of Unsuitability for Enlistment/Reenlistment.

23.  On 7 or 11 March 1967, he was reassigned to Headquarters Battery,
4th Battalion, 73rd Artillery, Fort Bragg, NC.

24.  On 3 April 1967, he acknowledged receipt of the commander's intent to impose NJP against him under the provisions of Article 15 of the UCMJ due to failure to go to his appointed place of duty at the time prescribed on 27 March 1967 and absenting himself without authority from Fort Bragg and surrendering to military police at Fort Hamilton, NY, on 29 March 1967.

25.  After consulting with counsel, he declined trial by a court-martial, he declined to submit matters in extenuation, mitigation, and in his defense; he accepted NJP for the above offenses.  His punishment consisted of a reduction to private (PVT)/E-1 and 7 days of restriction and extra duty.  He also elected not to appeal his punishment.

26.  On 18 April 1967, by letter addressed to the applicant's member of Congress, the Deputy Post Commander, Fort Bragg, NC, stated that:

	a.  the applicant's record reflected that he had been a constant troublemaker. His difficulties began shortly after he was involved in an accident in which he sustained an injury to his back.  Since that time, he had attempted to relieve his frustration at what he believed was an inaction on the part of medical authorities in correcting his injury.  The Chief of Orthopedics, Womack Army Hospital, however, stated that the applicant was over-concerned about any little twinge he may be getting and that there was no basic back disease and no evidence of a residual injury.  As far as his back was concerned, he was fit for full duty.

	b.  the applicant had been warned that unless his conduct improved he would be considered for elimination as unsuitable and if his conduct improved he would be retained in the service until the expiration of his term of service.

27.  His records contain page 1 of a 4-page DA Form 2627-1, initiated on 24 May 1967, wherein his immediate commander intended to impose NJP under the provisions of Article 15 of the UCMJ, against him for absenting himself from his appointed place of duty.  Pages 3 through 4 of this form which would have listed the disposition and/or punishment imposed, if any, are not available for review with this case.

28.  On 15 June 1967, at a special court-martial, he pled not guilty to:

	a.  Charge I, violation of Article 91 of the UCMJ, one specification of striking a noncommissioned officer (NCO), one specification of being disrespectful in deportment towards an NCO, one specification of disobeying a lawful order, and one specification of assaulting a second NCO.

	b.  Charge II, violation of Article 86 of the UCMJ, one specification of leaving his appointed place of duty without authority.

   c.  The court found him guilty striking an NCO and being disrespectful in deportment towards an NCO.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $86.00 pay for 6 months.  The convening authority approved the sentence on 16 June 1967.

29.  On 17 June 1967, the Commander, 4th Battalion, 73rd Artillery, Fort Bragg, NC, submitted a letter to the court-martial convening authority wherein he stated that:

	a.  On 9 May 1967, the Assistant Inspector General (IG) informed him the applicant had complained that he had not been permitted to prefer court-martial charges against an NCO for assault.  However, the battalion commander's cursory investigation disclosed that there was a valid basis for charging the applicant.

	b.  On 10 May 1967, the battery commander was directed to submit charges against the applicant.

	c.  On 24 May 1967, charges were received and referred to an Article 32 hearing.  The delay in submitting charges was due to a combination of attempts to obtain statements (some of the principal witnesses were on leave) and inexperienced personnel preparing the court-martial.

	d.  On 1 June 1967, the investigating officer's report was submitted and on 5 June 1967, additional charges preferred.

	e.  On 9 June 1967, the charge and additional charge were sent to trial counsel.  This unit did not have sufficient officers to convene a court-martial and the delay from 1 June 1967 was due to lack of officers, particularly field grade officers. 

30.  On 26 June 1967, the convening authority ordered the findings of guilty and the sentence to be set aside, because the court overruled a defense motion to dismiss for lack of a speedy trial as to the specifications and Charge I without hearing evidence from trial counsel in explanation of the delay.  The convening authority ordered a rehearing of the charge and two specifications for which the applicant was found guilty.

31.  On 29 July 1967, he was re-tried at a special court-martial.  He pled not guilty to:

	a.  Charge I, violation of Article 91 of the UCMJ, one specification of striking an NCO and one specification of being disrespectful in deportment towards an NCO; and 

	b.  Charge II, violation of Article 89 of the UCMJ, one specification of disrespecting a commissioned officer.

   c.  The court found him not guilty of all specifications and all charges.  The convening authority ultimately approved the findings on 22 July 1967.

32.  On 25 July 1967, he underwent a separation physical and noted that his health was poor.  After the examination the military doctor noted his high blood pressure but found him fully qualified for separation.

33.  On 5 August 1967, he was issued a DA Form 1811 (Physical and Mental Status on Release from Active Duty) that shows his physical condition on 5 August 1967 was such that he was considered physically qualified for separation or for reenlistment without reexamination provided he reenlisted within 90 days and stated that he had not acquired any new diseases or injuries during the interval period when not a member of the military service.

34.  He was honorably released from active duty on 5 August 1967 by reason of expiration of his term of service and he was transferred to the U.S. Army Reserve to complete his remaining service obligation.  His DD Form 214 shows he completed 3 years and 2 days of creditable active service and he had 11 days of lost time.  This form shows in:

   a.  items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "PVT" and "E-2" respectively.

b.  item 15 (Reenlistment Code) shows the entry "RE-3B."

35.  Army regulation 27-10 (Military Justice) prescribes and implements the policies and procedures pertaining to the administration of military justice.  It implements the procedures prescribed by the Manual for Courts-Martial.  The version of the regulation in effect at the time stated:

	a.  Paragraph 2-8 states records of trial by summary court-martial and records of trial by special court-martial which do not involve approved sentences to bad-conduct discharge shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation.

	b.  Paragraph 3-7 authorizes various types of punishment under Article 15, in pertinent part, reduction in grade.  The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction.  For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15, if he has the general authority to appoint to the grade from which reduced or any higher grade.  A reduction under Article 15, if unsuspended, becomes effective on the date the commanding officer imposes the punishment.  Orders announcing reductions in grade and orders announcing forfeitures and detentions of pay or restoration of pay forfeited or detained will be distributed to the custodian of the Military Personnel of the member for filing in the folder, and for use as a substantiating document.

	c.  Paragraph 3-11 states that all Army members (except Army personnel attached to or embarked in a vessel) may demand trial by court-martial in lieu of NJP under Article 15 of the UCMJ.  In deciding whether he wishes to elect trial by court-martial, the member is not entitled to be informed as to the type or amount of punishment he will be given if he does not demand trial.  However, upon his request, he will be informed of the maximum punishment which may be imposed under Article 15 by the officer who is to impose the punishment and of the maximum punishment that can be adjudged by court-martial upon conviction of the offense or offenses involved.

	d.  Paragraph 3-13 states the power to impose NJP charges a commanding officer or an officer to whom that power has been delegated with the grave responsibility of exercising his authority in a completely judicious manner.  Authority under Article 15 must be administered with absolute fairness in a formal and dignified manner at every stage of the proceedings.  Whenever practicable the commanding officer should impose the punishment in the presence of the member.  The commander may then explain to the member such matters as the factors which he considered in determining the punishment and the appellate rights and procedures which are available to the member, as applicable.

	e.  Paragraph 3-15d (Distribution of Article 15) states the DA Forms 2627, 2627-1, and 2627-2 will be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which has been considered by the officer authorized to impose the NJP will be attached to the original file.  In cases involving enlisted personnel the original form is forwarded to the U.S. Army Personnel Services Support Center, Fort Benjamin Harrison, IN for filing as a permanent document in the Official Military Personnel File (OMPF); the first copy goes to the unit of assignment, for file above the Field Personnel File Divider in the individual's Military Personnel Records Jacket U.S. Army; and the second copy goes to the individual.  
	f.  Paragraph 5-5 (Disposition of Records of Trial and Related Court-Martial Order) states upon completion of a review and any corrective action on records of trial by summary court-martial and records of trial by special court-martial which do not involve approved bad conduct discharges, the record of trial and two copies of the initial promulgating order and any corrective orders in the case will be filed in the office of the staff judge advocate of the command of the supervisory authority.  One copy of each order will be furnished to the convening authority to be transmitted to the custodian of the personnel records of the accused for filing in the individual's Military Personnel Records Jacket, U.S. Army (DA Form 201) as a semi-permanent document.  On receipt of any court-martial order or other communications made by the supervisory reviewing authority after the initial orders in the case, which affirms the approved court-martial findings and sentence, the custodian of the personnel records will enter the order number, source, and date in item 53(a), DA Form 20B, Insert sheet to DA Form 20 (Record of Court-Martial Convictions), and complete the signature block of item 54(a), DA Form 20B.  In the event the affirmed findings or sentence are later changed (i.e., remitted, suspended, set aside, or otherwise altered) the custodian will fill out items 53(b) and 54(b) of DA Form 20B.  In addition, on receipt of any court-martial order or other communications made by the supervisory reviewing authority after the initial orders in the case, which change (i.e., remit, suspend, set aside, or otherwise alter) any part of the approved court-martial findings or sentence, the custodian of the personnel records will make pen-and-ink changes in the current entry in DA Form 20B to make it conform to the change in the trial results.  The custodian will then enter the order number, source, and date in item 53(b), DA Form 20B, and complete the signature block of item 54(b), DA Form 20B. 

36.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

37.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides the authority for separation of enlisted personnel.  The regulation in effect at the time provided for initiation of a Certificate of Unsuitability for enlistment or reenlistment (later renamed as a bar to reenlistment).  Bars to Reenlistment are used as a rehabilitative tool implemented when a Soldier has showed undesirable tendencies but who also shows potential for future military service. 

38.  Army Regulation 635-5 (Personnel Separations – Separation Documents) states the purpose of the separation document is to provide an individual with documentary evidence of their military service. 

* Item 5a shows the grade in which serving at the time of separation, indicating whether permanent (P) or temporary (T)
* Item 5b shows the pay grade 
* Item 15 shows the applicable reenlistment code for enlisted personnel as follows:

* RE-1, fully qualified for immediate reenlistment
* RE-1A, fully qualified for reenlistment; however, ineligible to enlist for 93 days after discharge
* RE-2, fully qualified for reenlistment; separated for the convenience of the Government under a separation which does not contemplate immediate reenlistment
* RE-3, not eligible for reenlistment unless a waiver is granted
* RE-3B, not eligible for reenlistment unless a waiver is granted; this code is used for members who have lost time of 1 to 15 days, and is waivable by the general court-martial convening authority
* RE-4, not eligible for reenlistment

39.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, provided that when a medical examination indicated that hospitalization was necessary, the commanding officer would order the member to the nearest hospital for observation, treatment, and appropriate disposition.  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 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.

40.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, and retention and related policies and procedures.  Chapter 3 contains a listing of various medical conditions which may render a Soldier unfit for further military service.  Paragraph 3-23(b) of the regulation in effect at the time states with respect to hypertensive cardiovascular disease and hypertensive vascular disease, systolic blood pressure consistently over 180 mm of mercury or a diastolic pressure of over 110 mm of mercury following an adequate period of oral therapy while on an ambulatory status.  Furthermore, any documented history of hypertension regardless of the pressure values if associated with one or more of the following: More than minimal changes in the brain; heart disease; or kidney involvement.

41.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

42.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected as follows:

* removal of Summary Court-Martial Order Number 2, dated 23 January 1967 from his MPRJ
* removal of DA Forms 2627-1, dated 3 April 1967 and 24 May 1967 from his record
* removal of a Certificate of Unsuitability for Enlistment/Reenlistment and allied documents
* removal of the RE code of 3 from his DD Form 214 
* restoration of his rank to SP4/E-4 and a medical discharge

2.  With respect to the summary court-martial, the applicant departed his unit in an AWOL status on 5 January 1967 and he returned on 16 January 1967.  This was a violation of Article 86 of the UCMJ.  His immediate commander notified him of the intent to punish him for this violation/offense under the provisions of Article 15.  The applicant exercised his right and demanded trial by a court-martial but he did not submit matters in extenuation, mitigation, or defense.  

	a.  on 23 January 1967, he pled not guilty at a summary-court martial to the charge and specification of violating Article 86, UCMJ, that he was AWOL from   5 to 16 January 1967.  The court found him guilty of the charge and specification and sentenced him to a reduction to PV2/E-2 and a forfeiture of $94.00 pay for 
1 month.  

	b.  all requirements of law and regulation were met and his rights were fully protected throughout this court-martial process.  The court-martial order is properly filed in his MPRJ.  His trial by a summary court-martial was warranted according to the offense charged.  Conviction was effected in accordance with applicable law and regulations.  Other than his dissatisfaction with the outcome, he has not shown an error or an injustice regarding the summary court-martial. He is not entitled to the requested relief.

3.  With respect to the removal of the Article 15, dated 3 April 1967:

	a.  on 3 April 1967, he acknowledged receipt of the notification of his commanding officer's intent to impose NJP under the provisions of Article 15 against him for failing to go at the time prescribed to his appointed place of duty on 27 March 1967 and absenting himself without authority.  After consulting with counsel, declining trial by a court-martial, and declining to submit matters in extenuation, mitigation, and defense, he accepted NJP for the above offenses.  His punishment consisted of a reduction to private (PVT)/E-1 and 7 days of restriction and extra duty.  He also elected not to appeal his punishment. The DA Form 2627-1 is appropriately filed in his MPRJ and he has provided no reason to remove it. 

	b.  The applicant had the opportunity to turn down this Article 15 and demand trial by court-martial at the time it was issued.  He declined to do so.  A commander's decision cannot or should not be reversed without overwhelming evidence it was unlawful or egregiously unfair.  The applicant has presented no such evidence and, therefore, is not entitled to have the Article 15 expunged from his record.

4.  With respect to the removal of the Article 15, dated 24 May 1967, his records contain page 1 of a 4-page DA Form 2627-1, initiated on 24 May 1967, wherein his immediate commander intended to impose NJP under the provisions of Article 15 of the UCMJ, against him for absenting himself from his appointed place of duty.  The disposition and/or punishment imposed, if any, is not available for review with this case.  Since the Board is not an investigative body and since there is a presumption that what the Army did in his case was correct, without the complete facts and circumstances of this Article 15, there is insufficient evidence to make a fair or equitable evaluation of this issue.

5.  With respect to the Certificate of Unsuitability for Enlistment/Reenlistment, only Soldiers of high moral character, personal competence, and demonstrated adaptability to the requirements of the professional Soldier’s moral code will be re-enlisted in the Active Army.  Soldiers are evaluated under the “whole person” concept" and those Soldiers who can’t or don’t measure up to such standards, but whose separation under proper administrative procedures is not warranted, are barred from further service.  The bar is not a punitive action, but is designed for use as a rehabilitative tool.  It is intended to put the Soldier on notice that the Soldier is not a candidate for re-enlistment, and may be a candidate for separation if the circumstances that led to the bar are not overcome.

	a.  the applicant's immediate commander served him with this bar due to his record of habitual misconduct as evidenced by his court-martial, repeated missing of formation, and shirking of his duties.  The applicant was provided with an opportunity to submit matters in his defense if he felt the certificate was unfair but he not only he failed to do so, he also refused to even acknowledge receipt of this certificate.  The certificate is appropriately filed in his records and he has provided no reason to remove it.

	b.  the fact that his conduct and efficiency ratings were excellent prior to the court-martial and/or the fact that he served honorably for a number of years was presumably considered in the evaluation of his service; however, it did not prohibit the initiation of a bar to reenlistment against him as his commander clearly deemed such action appropriate. 

6.  With respect to the RE-3B code, the evidence of record indicates the applicant was ineligible to reenlist as evidenced by the Certificate of Unsuitability for Enlistment/Reenlistment initiated by his commander.  The evidence of record also shows the applicant had lost time of 11 days from 5 to 16 January 1967.  Therefore, the RE-3B code is the appropriate code and is properly shown on his DD Form 214.  He is not entitled to the requested relief.

7.  With respect to his rank/grade, the evidence of record shows the applicant accepted NJP on 3 April 1967.  The result of this NJP was his reduction to PVT/E-1.  He elected not to appeal this punishment.  He held this rank/grade until the time of his separation.  He was not promoted or appointed above the rank/grade of PVT/E-1 from the date of his reduction to the date of his separation.  However, through an apparent administrative error, his DD Form 214 shows his grade as "E-2" instead of "E-1."  Thus, by a windfall, the applicant has already received a higher grade.  He is not entitled to the requested relief.

8.  With respect to the medical discharge:

	a.  the evidence of record shows the applicant sustained various injuries or ailments during his military service.  In each case, he was hospitalized, treated, and released to duty.  In one case, he was disqualified from airborne duty but he was otherwise qualified for military service.  

	b.  the medical documents related to his accident are not available for review with this case.  However, in a letter, dated 18 April 1967, the Deputy Post Commander, Fort Bragg, NC, stated that the Chief of Orthopedics, Womack Army Hospital, confirmed as far as the applicant's back was concerned, he was fit for full duty.  Nowhere in his records does it show that this injury made him unfit for military service.

	c.  his records also clearly show he suffered from a mild blood pressure elevation; however, he does not appear to have met the criteria for an MEB.  In fact, during the separation physical, the military doctor noted the blood pressure issue but found the applicant fully qualified for separation. 

	d.  A review of his medical records on the date of his separation also revealed he was fully qualified for separation.  In fact he was even offered the option to reenlist without a medical reexamination, within 90 days of his separation date.  

	e.  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 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.

9.  The applicant had an extensive history of misconduct that included two instances of NJP (albeit one does not contain the complete facts and circumstances), one instance of a court-martial, one instance of AWOL, a bar to reenlistment, a history of substandard performance, shirking, insubordination, and multiple counseling and reductions.  His misconduct spanned throughout his entire military history and at various stations.  After a careful review of the applicant’s entire record of service and all the evidence he submitted, it is determined he is not entitled to the requested relief.
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)                                         AR20100028265



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ABCMR Record of Proceedings (cont)                                         AR20100028265



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