IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110008449


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 discharge upgrade denial.

2.  The applicant states he should never have been enlisted in the Army in the first place because he couldn't pass the entrance test without help from the recruiter.  He was not prepared to cope with the stress of the Vietnam War and escaped into alcohol.  Alcoholism led to all of his trouble in the Army and to his ultimate discharge.

3.  The applicant provides a 4-page Clinical Summary, dated 22 February 2011, from the Princeton (WV) Vet Center and signed by signed by a staff QMRP (Qualified Mental Retardation Professional), who is an LPC (Licensed Professional Counselor) and an ALPS (Approved Licensed Professional Supervisor).

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 AR20090015242, on 23 March 2010.

2.  The applicant argues he is intellectually challenged and clinically mildly mentally retarded and should never have been allowed to serve.  This is a new argument warranting consideration by the Board.

3.  The applicant’s military records show, at Beckley, WV on 21 September 1966, he enlisted in the Regular Army (RA) for 3 years.

4.  The applicant was transferred to Fort Jackson, SC for initial entry training (IET).  At Fort Jackson he completed the Armed Forces Qualification Test (AFQT).  His GT (General Technical) score was 68, and his AFQT category was Cat-IV.  Army Mental Categories are rated as:

* Cat I	Very Rapid Learner
* Cat II	Rapid Learner
* Cat III	Average Learner
* Cat IV	Slow Learner
* Cat V	Very Slow Learner

5.  The applicant, after being recycled one time, successfully completed his IET and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  Following IET, he attended and completed the Basic Airborne Course at Fort Benning, GA.  He was awarded the Parachutist Badge on or about 1 March 1967.  He was ordered to Vietnam.

6.  The applicant arrived in Vietnam on or about 1 April 1967 and was assigned to Troop E, 17th Cavalry, 173rd Airborne Brigade (Separate) where he served as a gunner and an ammunition bearer.  To this point in his military service, his conduct and efficiency ratings were "excellent" as shown on his DA Form 20 (Enlisted Qualification Record).

7.  On 8 October 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order not to purchase alcohol from local nationals.

8.  In April 1968, the applicant was convicted by a general court-martial of one specification of committing an assault upon another person on 26 January 1968, by shooting him in the abdomen with a .45 caliber pistol, causing him grievous bodily harm.  He was sentenced to 1 year of confinement at hard labor, reduction to pay grade E-1, and to be discharged with a bad conduct discharge (BCD).  The sentence was adjudged on 15 April 1968.

9.  The Clinical Summary provided by the applicant states:

* according to the applicant, he took the AFQT 3 times and, during the 3rd time, he was sent home only to return, finish the test, and pass


* he was sent to Vietnam and wasn't even able to locate the country on a globe
* he suffers from post traumatic stress disorder (PTSD) from the horrors he witnessed and from having to fight for his life during Tet 1968

10.  The Clinical Summary references Department of Defense "Project 100,000" stating:

* it was a program to access recruits who could not pass the AFQT
* it was established to:

* provide opportunity for disadvantaged men
* to provide more troops for the Vietnam War

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks reconsideration of the Board's denial of his request for a discharge upgrade.  He alleges, in effect:

* he was intellectually challenged and mildly mentally retarded
* he should never have been enlisted in the first place

2.  The applicant's AFQT scores indicate he was classified as Cat IV, a slow learner.  Before 1966, Cat IV individuals were generally excluded from military service; however, in 1966 the Department of Defense introduced "Project 100,000" which reevaluated Cat IV individuals to recruit those who would previously have been below acceptable standards.

3.  The applicant was permitted to enlist in the RA under rules then in effect.  He completed all required military training and he was awarded an MOS.  He served in Vietnam and his service records reflect he performed with "excellent" conduct and efficiency.

4.  The applicant was not administratively separated because he was unfit or unsuited to military service; he was discharged as a result of conviction by a general court-martial for shooting a fellow Soldier in the stomach with a .45 pistol. Such an act had nothing to do with his mental category.

5.  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 change a discharge due to matters which should have been raised in the appellate process, 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.

6.  Given the applicant's undistinguished record of service and the seriousness of the offense for which he was convicted, the type of discharge he received was appropriate.  His new argument is not persuasive and, as a result, clemency is not warranted in this case.

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 AR20090015242, dated 23 March 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)                                         AR20110008449





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ABCMR Record of Proceedings (cont)                                         AR20110008449



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