IN THE CASE OF:	 

		BOARD DATE:	9 June 2011

		DOCKET NUMBER:  AR20100028677 


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 that his under other than honorable conditions discharge be upgraded to either an honorable or a medical discharge.

2.  The applicant states, in effect, that he was suffering from a mental disability at the time of the incident which led to his unjust court-martial and unfavorable discharge.  Immediately upon enlisting in the Army he was subjected to various traumatic events and attacks that he believes were racially motivated.  These events affected his ability to perform his duties and as a result he went absent without leave (AWOL).  Since his discharge he has been extremely limited in his ability to obtain and maintain employment.  The mental impairments he suffered are due to his military service and have greatly impacted his ability to live a normal life.

3.  The applicant did not provide any documentation in support of his request.
 
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states he represents the applicant.

2.  Counsel did not provide any documentation in support of applicant's request.

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.  On 30 June 1975, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was assigned to Company C, 2d Battalion, 13th Infantry in Germany.

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

     a.  2 February 1976, for being AWOL from 31 January to 1 February 1976;

     b.  13 November 1976, for failure to report for morning formation;

     c.  15 December 1976, for possessing marijuana; and

     d.  2 June 1977, for being disrespectful towards a senior noncommissioned officer and for failure to report for morning formation.
     
4.  On 16 September 1977, he was convicted by a special court-martial of two specifications of being AWOL, from 13 July to 28 July 1977 and from 28 July to 
6 September 1977.

5.  On 29 November 1977, the applicant's company commander recommended that he be separated for misconduct.  He recommended waiver of further counseling and rehabilitation.

6.  On 19 December 1977, the applicant appeared before a board of officers.  Following the applicant's testimony and a review of the available evidence the board recommended that he be eliminated from the service for misconduct with the issuance of an under other than honorable conditions discharge.  The applicant records of direct and cross examination do not show he referenced any mental disability, race-based attacks, or other traumatic events that occurred.

7.  On 23 December 1977, the applicant was discharged under other than honorable conditions.  He had completed 2 years and 2 months of creditable active service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  It states the mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

10.  Army Regulation 635-200 (Enlisted Separations) sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.
Paragraph 13-5(a)(1) provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an under other than honorable conditions discharge was normally considered appropriate.

11.  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 available evidence does not substantiate the applicant's claims of mental disability, race-based attacks, or that any other traumatic events occurred and led to his under other than honorable conditions discharge.

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

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

4.  There is no available evidence showing the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100007379



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ABCMR Record of Proceedings (cont)                                         AR20100028677



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