IN THE CASE OF:	  

		BOARD DATE:  17 April 2012

		DOCKET NUMBER:  AR20110019371 


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 upgrade of his undesirable discharge to a medical discharge.

2.  The applicant states:

* he was suffering from Post-Traumatic Stress Disorder (PTSD) because of his specialty and due to the climate of the Army as far as race relations and the stress most Black Vietnam returnees went through
* it was expedient to cast them [Blacks] out through coercion
* he served his time during a period of war when most fled to Canada
* he and other Soldiers did not have the benefit of counseling and were told to go home and forget about it; now we know the truth
* he has records of being treated for PTSD in Durham, NC by the Veterans Administration (VA) in 1984
* there should not be a time limit on the truth and justice
* he was told to take the "212" or face court-martial
* he had an opportunity to go to Germany where he thought he would have a chance, but was told "we don't ship our problems to others"
* the racial atmosphere during that time was toxic in the military as well as in the country
* he had no support from family because they were afraid of him after his return
* he was the only Black in all of his units


* the Pathfinder Detachment always had hard stripes or corporals
* he was given specialist four (SP4) because of the attitude of the commanding officer
* his job was to control helicopters coming into the landing zone and to retrieve downed helicopters and crew if dead
* he got tired of looking at charred bodies and loading killed in action or wounded Soldiers
* he went home to get away, but reenlisted and came back
* he questions where was the treatment for anger for those returning to the United States, the statistics of Black discharges compared with others, and how many innocent people died because it was easier to cast them out than to treat them
* the treatment of Blacks by the military is nothing new since the Truman decision; therefore, there are not many veterans alive now
* the original decision will probably be upheld now because everybody loves a Soldier, but hates a veteran
* he is proud of his country, not the people who run it because they have no idea what a Soldier endures
* it took him years to function although he wanted to stop the pain
* he wanted to go to a line unit because he was the only Black in his unit; however, he was told no and sent to the 145th Aviation Battalion where it was the same thing
* driving trucks was his salvation, yet many of his friends died of cancer and suicide
* amendments are added to the Constitution, we change the Don’t Ask Don't Tell policy, but cannot be flexible to change discharges
* he deserves to have his discharge changed to show his daughter that he did his duty 

3.  The applicant provides:

* self-authored statements
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)

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.  The applicant enlisted in the Regular Army on 6 December 1968 and after completing a prior period of honorable service, he reenlisted on 6 April 1970.  He completed training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained while on active duty was (SP4)/E-4.

3.  The applicant's complete discharge packet is not available for review.

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

* 3 August 1970, for disorderly conduct and fighting in a military facility
* 30 September 1971, for being disrespectful to and disobeying lawful orders of a superior commissioned officer
* 18 October 1971, for disorderly conduct and failing to follow instructions from military police

5.  Special Court-Martial Order Number 210, issued by Headquarters Command, U.S. Army Garrison, Fort Bragg, NC, dated 13 July 1971, shows the following:

	a.  Charge 1.  Article 86.  Plea:  Guilty.  Finding:  Guilty.

In that he did, on or about 3 April 1971, without authority, absent himself from his unit, to wit:  Company B, 5th Battalion, 31st Infantry, located at Fort Benning, GA, and did so remain so absent until on or about 13 May 1971.

	b.  Charge II.  Article 92.  Plea:  Not Guilty.  Finding:  Guilty.

In that, having knowledge of a lawful order issued by Staff Sergeant L. V., his platoon sergeant, to go to the mess hall to perform the duties of Kitchen Police, an order which it was his duty to obey, did, at Special Processing Detachment, 2d Processing Company, Headquarters Command, U.S. Army Garrison, Fort Bragg, NC., on or about 1030 hours, 14 May 1971, fail to obey the same.
6.  His sentence was adjudged on 29 June 1971.  He was sentenced to hard labor for 35 days, forfeiture of $125.00 per month for 3 months, and to be reduced to the rank/grade of private (PV1)/E-1.  The sentence was approved and except for the part of the sentence that provided for confinement at hard labor for 35 days and a forfeiture of $125.00 per month for 3 months which was in excess of a forfeiture of $50.00 per month for 3 months, was suspended for 3 months, at which time, unless the suspension was sooner vacated, the suspended portions of the sentence were to be remitted without further action.

7.  Unit Orders Number 60, issued by Headquarters, 5th Infantry Detachment, Fort Rucker, AL, dated 19 October 1971, show the applicant was reduced to PV1/E-1.

8.  On 29 October 1971, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-212 (Discharge, Unfitness and Unsuitability), for unfitness.  The basis for the action was his:

* negative attitude towards the military
* requiring constant supervision
* record of AWOL and constantly shirking his duties
* not responding to counseling or rehabilitation
* record of being disrespectful to superiors

Additionally, he was advised of his right to appear before a board of officers.

9.  On 29 October 1971, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.

10.  On 3 December 1971, a board of officers was appointed to review and make a determination of the applicant's elimination from the Army.  The findings and recommendation are unavailable for review.

11.  On 23 December 1971, he was again advised of the impact of the discharge action.  He waived consideration of his case by a board of officers and representation by counsel.  Additionally, he declined to submit statements in his own behalf and acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an undesirable discharge under conditions other than honorable was issued to him, and that as the result of issuance of such a discharge, he could be ineligible for many or all benefits as a veteran under Federal and State laws. 

12.  On 14 January 1972, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 5 months, and 27 days of net active service this period for 2 years, 9 months, and 27 days of total active service.

13.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 
14 January 1972 shows the following periods:

* 24 November 1970 to 15 December 1970
* 3 April 1971 to 12 May 1971
* 14 May 1971 to 6 July 1971

14.  The available record does not show the applicant was diagnosed with PTSD or any other illness.  Additionally, there is no record the applicant was ever referred to a medical evaluation board (MEB).

15.  There is no record the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness 
when one or more of the following conditions existed:  (1)  because of frequent incidents of a discreditable nature with civil or military authorities; (2)  sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3)  drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4)  an established pattern of shirking; (5)  an established pattern of dishonorable failure to pay just debts; and
(6)  an established pattern showing dishonorable failure to contribute adequate support to dependents (including failing to comply with orders, decrees, or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Enlisted Separations) provides guidance on characterization of service and states in:

	a.  Paragraph 3-7a that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization 


is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b, that a general discharge 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.

18.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Army Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in MEB
* receive a permanent physical profile rating of P3 or P4 and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, U.S. Army Human Resources Command


	c.  The PDES assessment process involves two distinct stages – the MEB and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of impairment does not in and of itself justify a finding of unfitness.  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.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

19.  Army Regulation 635-40 establishes the PDES.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Paragraph 2-2b provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

20.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

	a.  Paragraph 3-3a provides that performance of duty despite impairment would be considered presumptive evidence of physical fitness.
	b.  Paragraph 3-3b(1) provides that an individual must be unable to perform the duties of his or her office, grade, rank, or rating to be found unfit by reason of physical disability.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered.

2.  Although the applicant contends he suffers from PTSD, his record contains insufficient military treatment records showing a diagnosis of PTSD or any other mental condition while in the Army.  The available record does not contain a mental health status evaluation or all the facts and circumstances surrounding his separation.

3.  The applicant's post-service physical care or possible disability rating by the VA does not mean he was physically disabled while he was serving on active duty and is not grounds for approving his request.

4.  The applicant's misconduct had a detrimental impact on his units and clearly diminished the overall quality of his service below that meeting an honorable or a general discharge.

5.  The applicant’s military records show he committed numerous offenses that led to his discharge.  His record includes evidence that he received multiple instances of NJP and a conviction by a special court-martial.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a change to his characterization of service.

6.  The type of discharge directed and the reason for separation were appropriate considering the available facts of the case.  The record contains no evidence that the applicant was coerced or any indication of procedural or other errors that would have jeopardized his rights.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. 


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)                                         AR20110019371



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ABCMR Record of Proceedings (cont)                                         AR20110019371



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