IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019278 


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 the characterization of his discharge be changed from under honorable conditions (general) to honorable.

2.  The applicant states he was court-martialed and railroaded out of the military due to his heart condition.  He had hypertension prior to enlisting and he was still allowed to enter military service.  He was totally truthful about his medical condition.  His medical condition got worse and he was placed on a profile where he was not allowed to do any physical activities.  Very minor infractions were brought up in his court-martial.  He was incarcerated for 14 days and then discharged from the Army.  He had been offered a medical discharge before.

3.  The applicant provides:

* Standard Form 93 (Report of Medical History), dated 17 December 1982
* Standard Form 88 (Report of Medical Examination), dated 17 December 1982
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 December 1984

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 9 February 1983 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 1 August 1983, he was placed on temporary profile for essential hypertension.  Assignment limitations resulting from this physical profile were no crawling, stooping, running, jumping, prolonged standing or marching.  Under 
P-physical capacity or stamina of the physical profile he was assigned a 3T.  This profile expired on 29 September 1983.

4.  A DA Form 4707 (Entrance Physical Standards Board (EPSD) Proceedings), dated 8 September 1983, shows he was diagnosed with essential hypertension, existed prior to service, not service aggravated.  He was found physically disqualified for induction into military service but found qualified for retention.  It was recommended he be separated from the military service in accordance with paragraph 5-11 of Army Regulation 635-200 (Personnel Separations, Enlisted Personnel).  There is evidence of record to indicate his command elected to retain him with knowledge of the required profile.

5.  On 27 January 1984, he was assigned to Company B, 1st Battalion, 58th Infantry at Fort Benning, GA.

6.  On 3 May 1984, he accepted nonjudicial punishment (NJP) for failure to go to his appointed place of duty at the time prescribed.

7.  His Military Personnel Records Jacket (MPRJ) shows he received formal counseling on:

* 4 June 1984 - breaking restriction 
* 4 June 1984 - his appearance and need to get up to standard and improve his job performance
* 12 July 1984 - absent from guard duty
* 5 December 1984 - displaying unsatisfactory performance and attitude towards discipline


8.  On 9 October 1984, he was tried before a summary court-martial.  

	a.  He pled guilty and was found guilty of:

* being absent from his appointed place of duty on 10 July and 12 July 	1984
* three specifications of failure to repair

	b.  His sentence consisted of:

* confinement for 20 days
* reduction to private/pay grade E-1
* forfeiture of $150

9.  On 29 October 1984, he received a mental status evaluation.  The examiner determined his behavior was normal, he was fully alert and oriented, his mood was anxious, he had a clear thinking process and normal thought content, and his memory was good.

10.  His commander's notification of action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance was not available for review.

11.  The applicant acknowledged he had been advised by consulting counsel of:

* the basis for the contemplated action to accomplish his separation under the provisions of chapter 13 of Army Regulation 635-200 for unsatisfactory performance and its effects
* the rights available to him
* the effect of any action taken by him in waiving his rights

12.  He elected to submit a statement in his own behalf; however, no statement was submitted.  He requested representation by counsel.

13.  The applicant further acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He acknowledged he understood:

* he was ineligible to apply for enlistment in the Army for 2 years after discharge
* he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication his discharge would be upgraded
14.  On 4 December 1984, his commander recommended his separation from the service because of unsatisfactory performance (court-martial) under the provisions of chapter 13 of Army Regulation 635-200.  

15.  He recommended that the requirements for rehabilitative transfer be waived. 
He did not think a move would enhance the applicant's ability to perform his job or change his personal behavior.

16.  On 6 December 1984, the appropriate authority:

* waived a rehabilitative transfer
* approved the recommendation for discharge
* directed his service be characterized as under honorable conditions

17.  On 19 December 1984, he was discharged due to unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  He completed 1 year, 9 months, and 27 days of active service that was characterized as under honorable conditions.  He had 14 days of time lost due to confinement.

18.  There is no evidence the ADRB reviewed his case for a change of characterization within the ADRB's 15-year statute of limitations.

19.  In a letter to his Congressional representative, he stated his profile gave him an opportunity to be medically discharged with no benefits.  He chose to remain in the service and serve his country.

20.  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.  

	a.  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.  

		(1)  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  
		(2)  Numerical designators "2" and "3" indicate that 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.  

		(3)  Numerical designator "4" indicates that 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 that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	b.  To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary).  The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.  In no case will individuals in a military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

21.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Paragraph 5-11 provided for the separation of personnel who did not meet procurement medical fitness standards.

		(1)  Members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment were separated. Medical proceedings, regardless of the date completed, must have established that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty which:

			(a)  Would have permanently disqualified him or her for entry into the military service had it been detected at that time; and 

			(b)  Did not disqualify him or her for retention in the military service under the provisions of Army Regulation 40-501, chapter 3. 

		(2)  As an exception, a member who had completed basic combat training and met the requirements of (1) above, but who requested to complete the period of service for which enlisted, could be retained in the Service by commanders. Such a member was required to sign a statement electing to complete the period of service, in spite of his or her eligibility for separation under this paragraph.

	b.  Chapter 13 provided for separation due to unsatisfactory performance when, in the commander's judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good 	order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future 	including potential for advancement or leadership, was unlikely

	c.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions.

	d.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  He was recommended for discharge on 8 September 1983 because he was not medically qualified under procurement medical fitness standards.  However, he was found to meet retentions standards.  Therefore, because he had completed basic combat and advanced individual training, he was eligible to be retained to complete the period of service for which he enlisted.

2.  A statement, signed by the applicant, electing to complete his period of service was not available for review.  However, he stated in his application he was offered a medical discharge.  In his statement to his Congressional representative he indicated he had the opportunity to be discharged but chose to remain in the service.  It is reasonable to conclude that he did sign a statement 

electing to complete his period of service.  Also, there is evidence of record to indicate his command elected to retain him.  Therefore, his hypertension was not considered as a mitigating factor for his misconduct.

3.  Once he elected to remain in the Army he was bound to meet the standards of acceptable conduct and performance of duty that are expected of Army personnel.

4.  He accepted NJP for failure to go to his appointed place of duty.  He received formal counseling on four occasions based on his unsatisfactory performance and his attitude toward discipline.  He was court-martialed for being absent from his appointed place of duty on two occasions and three specifications of failure to repair.  Therefore, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.
	
6.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

7.  In view of the foregoing, there is an insufficient basis to change the characterization of his service.

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)                                         AR20110019278



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ABCMR Record of Proceedings (cont)                                         AR20110019278



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