IN THE CASE OF:	

		BOARD DATE:	    27 October 2011

		DOCKET NUMBER:  AR20110012643 


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 previous requests for:

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

* Summary Court-Martial Order Number 2, dated 23 January 1967, from his military personnel records jacket (MPRJ)
* DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 3 April 1967 and 24 May 1967
* Certificate of Unsuitability for Enlistment/Reenlistment and allied documents
* reentry eligibility (RE) code 3B from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

	b.  restoration of his rank/grade to specialist four/E-4.

	c.  a medical discharge.

2.  The applicant states the Army clearly violated Army Regulation 40-501 (Standards of Medical Fitness) and the UCMJ by requiring a bad conduct discharge (BCD) hearing in order to issue a certificate of unsuitability for enlistment/reenlistment [now known as a bar to reenlistment].  Additionally, he was unjustly denied the opportunity to accept nonjudicial punishment (NJP) and he never agreed to accept a trial by court-martial.  He states the Army has provided no records to show he was a substandard Soldier and contends that he was more than an excellent Soldier in conduct and performance.  He continues by stating the Army ignored his injuries, violated his physical profile, and unjustly discharged him without the benefit of medical processing which is evidenced by the fact that the Department of Veterans Affairs (VA) granted him a 40-percent disability rating immediately upon release from the Army and a 100-percent disability rating within 6 months after discharge.  He also states he was assaulted by men in his squad and was subsequently tried.  He contends that the Army has acted to cover-up the wrong-doings in his case, otherwise he would have been medically discharged or retired.

3.  The applicant provides a three-page explanation of his case with four tabs containing documents from his personnel and medical records that were reviewed in his previous application as well as a packet of documents, dated 12 September 2011, consisting of correspondence to his Congressional representatives.

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 AR20100028265 on 2 June 2011.

2.  The applicant enlisted in the Regular Army on 24 July 1964 for a period of 3 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served with his 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.

3.  On 24 October 1966, he was issued a DA Form 8-274 (Medical Condition – Physical Profile Record) 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.

4.  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.

5.  On 5 January 1967, the applicant's immediate commander indicated in a written statement 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.

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

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

8.  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 to forfeiture of $94.00 pay for 1 month.  The convening authority approved the sentence on 23 January 1967 and ordered it executed.

9.  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.

10.  On the same date, the immediate commander certified the applicant read the certificate of unsuitability for enlistment/reenlistment in the presence of another officer and the platoon sergeant and the applicant stated he understood the allegations made against him, but he elected not to make a statement and refused to sign the statement of acknowledgement.

11.  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 his 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.

12.  On 31 January 1967, the Chief, Cardiovascular Services, Womack Army Hospital, Fort Bragg, NC, indicated the applicant had been found to have 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.

13.  On 7 February 1967, consistent with the battalion and brigade commander's recommendations, the approval authority approved the certificate of unsuitability for enlistment/reenlistment.

14.  On 3 April 1967, NJP was imposed against the applicant for failing to go to his place of duty and being AWOL from 27 to 29 March 1967.

15.  On 18 April 1967 in response to an inquiry from the applicant's Congressional representative, the Fort Bragg Deputy Post Commander informed the Congressional member that the applicant's records indicated he had been a constant troublemaker, he was fit for duty, and he had been warned that unless his conduct improved, he would be considered for elimination for unsuitability.

16.  On 24 May 1967, NJP was imposed against him for being absent from his place of duty.

17.  On 15 June 1967, he was convicted by a special court-martial of striking a noncommissioned officer (NCO) and being disrespectful in deportment towards an NCO and a commissioned officer.  On 26 June 1967, the convening authority ordered the findings of guilty and the sentence to be set aside and ordered a rehearing of the charges and specifications for which the applicant was found guilty.

18.  On 20 July 1967, he was re-tried by a special court-martial and was found not guilty of all charges.

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

20.  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.

21.  On 5 August 1967, he was honorably released from active duty in pay grade E-2 due to the expiration of his term of service.  His DD Form 214 shows he completed 3 years and 2 days of creditable active service and he had 11 days of lost time.  He was issued an RE code RE-3B.

22.  Army Regulation 27-15 (Legal Services), in effect at the time and subsequently superseded by Army Regulation 27-10 (Military Justice), prescribed and implemented the policies and procedures pertaining to the administration of NJP.  Paragraph 11 stated that Army personnel attached to or embarked in a vessel could not demand a trial by court-martial in lieu of NJP.  All other members of the Army could demand trial by court-martial in lieu of NJP under Article 15.  The officer who intended to impose the punishment would notify the member concerned of that intent and, if the right to demand trial by court-martial existed, would afford the member a reasonable period in which to decide whether to demand a trial by court-martial.  If the member demanded a trial by court-martial as to any offense involved, further action would not be taken to impose NJP as to that offense.  The type of court-martial to which the case would be referred or recommended for referral was a matter within the discretion of the appropriate commanding officer.

23.  Paragraph 12 of Army Regulation 27-15 stated 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 NJP in the presence of the member.  The commander might then explain to the member such matters as the factors which he considered in determining the NJP and the applicable appellate rights and procedures which were available to the member.

24.  Paragraph 14b (Distribution of Article 15) of Army Regulation 27-15 stated the DA Forms 2627, 2627-1, and 2627-2 would be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which was considered by the officer authorized to impose the NJP would be attached to the original file.  In cases involving enlisted personnel, the original form was 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 went to the unit of assignment for filing above the Field Personnel File Divider in the individual's MPRJ and the second copy went to the individual.

25.  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.

26.  Army Regulation 635-200 (Personnel Separations) 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.  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.  Commanders could remove the bar anytime prior to separation if the individual's conduct and efficiency so warranted and it had been in effect at least 6 months.

27.  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 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 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.

28.  Army Regulation 40-501 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 stated with respect to hypertensive cardiovascular disease and hypertensive vascular disease, systolic blood pressure consistently 

over 180 millimeters of mercury or a diastolic pressure of over 110 millimeters of mercury following an adequate period of oral therapy while on an ambulatory status was a cause for referral to the physical disability evaluation system.  Furthermore, any documented history of hypertension, regardless of the pressure values if associated with more than minimal changes in the brain, heart disease, or kidney involvement, was a cause for referral to the physical disability evaluation system.

29.  Title 10, U.S. Code, section 1201, in effect at the time, provided inter alia for the physical disability retirement of a member who had at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, in effect at the time, provided inter alia for the physical disability separation of a member who had less than 20 years of service and a disability rating at less than 30 percent.

30.  Title 38, U.S. Code, sections 1110 and 1131, permits 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 on the part of the Army.  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.  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's contention that the Army violated Army Regulation 40-501 by ignoring his injuries and not medically discharging or retiring him for physical disability has been noted and appears to lack merit.  The applicant underwent a separation physical and was deemed to have a mild blood pressure elevation which was not a disqualifier for retention or separation.  Additionally, there is no evidence to show he was deemed unfit for military service at any time during his active service.

2.  The applicant's contention that his rights under the UCMJ were violated because a bad conduct discharge hearing was convened in order to issue him a 

certificate of unsuitability for enlistment/reenlistment has been noted and was found to lack merit.  There is no evidence to show any hearings were conducted in that process and there has never been such a procedure involved in barring individuals from reenlistment.

3.  The applicant's contention that his rights under the UCMJ were violated because he was not offered NJP under Article 15 and he did not demand a trial by court-martial has been noted and was found to lack merit.  While Soldiers have a right to demand a trial by court-martial in lieu of accepting NJP,  Soldiers do not have a right to demand NJP under Article 15.  Additionally, Soldiers are not required, and in most cases are not asked, to concur with being tried by a court-martial.  The imposing commander makes the decision as to whether court-martial proceedings will be utilized.

4.  The applicant has provided insufficient evidence to establish that any of the records of punishment contained in the evidence of record were in error or unjust or any basis to remove any of them.  Accordingly, they should remain a matter of record.

5.  The applicant's contention that the Army cannot provide evidence to show he was a substandard Soldier has been noted and was found to lack merit.  By virtue of his record of disciplinary actions taken against him and the basis for his certificate of unsuitability for enlistment/reenlistment, it is reasonable to presume that his commander deemed him substandard at the time.  However, to the applicant's credit, he served all of his enlistment and was issued an honorable discharge.

6.  The applicant's contention that the Army acted to cover up wrongdoings regarding his injuries and disciplinary actions has been noted and appears to lack merit.  The applicant failed to show any evidence to support his contention.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100028265, dated 2 June 2011.



      ___________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)                                         AR20110012643



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012643



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1