IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110018093 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he got a letter to report for a physical in 1970.  He told them he had sickle cell anemia, but "he" said he could not see sending a man with a body like his home.  When he got to Fort Ord, CA, his ears and eyes were burning really badly.  He told his drill sergeant his chest was hurting but was told everybody's chest was hurting.  He passed out one day and woke up in the hospital.  He was unconscious for 13 days.  He was put in medical hold and given a permanent physical profile rating of "3" for his sickle cell anemia.  He said they gave him a 60-day physical profile for his heart.  He went to the inspector general (IG) and the IG told him he couldn't see giving a man a medical discharge with a body like his.  The IG told him to go back to the doctors and get them to change his medical record, to skip basic training and advanced individual training (AIT), and to give him 10 months in Vietnam.  The IG said when he got back he could go to school for any job.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 13 October 1970 for a period of 2 years.

3.  On 13 November 1970, the Chief, Department of Medicine, Medical Department Activity, Fort Ord, found him fit for duty with permanent assignment limitations.  He was assigned a permanent physical profile of "3" under "P" (physical capacity or stamina) based on having the sickle cell trait.  He was not to be assigned to isolated areas where definitive medical care was not available.

4.  On 4 January 1971, he was absent without leave (AWOL).

5.  A letter from Company A, 3rd Battalion, 3rd Basic Combat Training Brigade, dated 1 February 1971, stated the applicant had not satisfactorily completed basic combat training.

6.  On 14 May 1971, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 4 January to on or about 6 May 1971.  He was sentenced to 100 days of confinement that was suspended by the convening authority for a period of 100 days.

7.  On 20 May 1971, he was AWOL again.

8.  On 19 October 1971, court-martial charges were preferred against him for being AWOL from on or about 20 May to on or about 12 October 1971.

9.  On 2 November 1971, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* afforded the opportunity to speak with counsel prior to making this request
* advised he might be furnished an Undesirable Discharge Certificate

10.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:
* 
would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  The applicant submitted a statement with his request from his defense counsel.  Counsel stated the applicant left military control to help support his sister and to solve some of his own financial problems.  When the debts were resolved, he surrendered to authorities to straighten out his problems.  The applicant felt he would not be able to continue in his military status at the time.

12.  On 5 December 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate.

13.  On 21 December 1971, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He completed 4 months and 6 days of active service that was characterized as under conditions other than honorable.  He had 295 days of lost time.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Chapter 3 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) contains the policy and outlines the standards for determining unfitness because of physical disability.  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 may reasonably be expected to perform because of his or her office, grade, rank, or rating.  In order for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.

16.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  The numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  The numerical designator "4" indicates an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean the individual is unfit because of physical disability as defined in Army Regulation 635-40.

17.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could have been issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  He received a permanent physical profile for the sickle cell trait.  However, he was found fit for duty with assignment restrictions.  Therefore, there was no basis for him to receive a medical discharge.

2.  He contends the IG told him to tell his doctor to change his medical records, skip basic combat training and AIT, and to go to Vietnam for 10 months.  Then when he came back he could go to school for any job.  However, it is unlikely the IG told him this and he provides no evidence to support his contention.

3.  He was AWOL during basic training and he received a special court-martial for this offense.  Six days after his court-martial he was AWOL again.  Upon his return, he requested a discharge for the good of the service in lieu of trial by court-martial.  He never completed basic combat training or AIT.  Therefore, his service was clearly unsatisfactory.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service at the time it was issued.

6.  Based on the foregoing, there is no basis for upgrading his 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)                                         AR20110018093



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ABCMR Record of Proceedings (cont)                                         AR20110018093



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