BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120004423 


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 earlier petition to the Board requesting correction of his record to show his rank as sergeant first class (SFC)/E-7 at the time of discharge.  As a new issue the applicant requests a disability retirement.  

2.  The applicant states he was unjustly convicted of violating the Uniform Code of Military Justice (UCMJ) which resulted in the end of his military career.  He believes the misconduct that resulted in his court-martial conviction was due to mental illness.  He states the Physical Evaluation Board (PEB) determination of schizophrenic reaction making him unfit for duty was not the first manifestation of his disability.  A review of his service record clearly documents that a change in his duty performance occurred as early as May 1970.  His mental health deteriorated from that point yet he was held accountable under the UCMJ.  He points out the charges that were leveled were protected under his physical profile yet he was charged with failing to go to his appointed place of duty.  So, in his opinion, the court-martial should never have taken place and his rank at discharge should have been specialist four (SP4)/E-4.  He further states a discharge with a 10 percent disability rating clearly left him unemployable.  He should have received a military retirement. 

3.  The applicant provides the following documents in support of his request:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* Physical Profile Record, dated 28 October 1969
* Clinical Record, dated 2 April 1972
* Standard Form 88 (Report of Medical Examination), dated 2 May 1972

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 AR20110010594, on 3 January 2012.

2.  The applicant provides a VA Form 21-4138 with a new argument that warrants consideration by the Board.  

3.  During the original review of the case, the Board found that the applicant demanded trial by court-martial in lieu of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ.  It further concluded the applicant’s demand for court-martial resulted in his conviction by a special court-martial (SPCM) of a series of offenses that occurred between August and October 1971.  The Board further concluded there was no evidence or convincing argument showing the applicant was unjustly court-martialed, or that he was racially discriminated against.  

4.  The record shows the applicant enlisted in the Regular Army on 14 July 1969.  He successfully completed basic combat training at Fort Leonard Wood, Missouri, and was assigned to Fort Bliss, Texas to attend advanced individual training (AIT) for training in the Air Defense Artillery.  He failed to complete that course and was ultimately assigned to Fort Leonard Wood where he completed AIT in military occupational specialty (MOS) 63C (Tracked Vehicle Mechanic).  

5.  The applicant’s record shows he was advanced to SP4/E-4 on 31 December 1970, and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PVT)/E-1 for cause on 4 November 1971, and advanced back to PVT/E-2 on 10 May 1972.  

6.  The applicant’s disciplinary history includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on 25 July 1970, for missing bed check and willfully disobeying a lawful order; and a summary court-martial (SCM) conviction of two specifications of violating Article 91 of the UCMJ by willfully disobeying a lawful order and being disrespectful towards a noncommissioned officer.  

7.  On 27 August 1971, the applicant was informed of his unit commander’s 


intent to impose NJP on him for violation of Article 86 of the UCMJ for failing to go to his appointed place of duty on 25 and 26 August 1971.  The applicant informed his unit commander that he desired to consult with legal counsel and to demand a trial by court-martial.  

8.  On 4 November 1971, an SPCM found the applicant guilty of violating Article 96 of the UCMJ by failing to go to his appointed place of duty on 9 separate occasions between 25 August and 7 October 1971 and of violating Article 92 of the UCMJ by being derelict in the performance of his duty on 20 and 23 August 1971.  The resulting sentence included confinement for 4 months.  

9.  A clinical record narrative summary, dated 2 April 1972, confirms the applicant was diagnosed with reaction schizophrenia, acute, paranoid type, severe, manifested by paranoid ideation, hallucinations, anxiety, and social withdrawal, treated and improved, moderate stress of recent incarceration; with impairment for further military duty, with current moderate distortions of thinking with little or no disturbance in activities of daily living.  The narrative summary outlines the history of the applicant’s illness and indicates that sometime during the applicant’s 4-month confinement that resulted from his SPCM conviction and upon his release from confinement, he developed symptoms of paranoid and auditory hallucinations.  

10.  On 24 May 1972, a PEB considered the applicant’s medical condition.  The PEB found the applicant was unfit for further service based on his diagnosed condition of schizophrenic reaction, paranoid type, with slight impairment for social and industrial adaptability.  The PEB assigned him a 10 percent disability rating and recommended separation by reason of disability with severance pay.  The applicant concurred with the PEB's findings and recommendation.  

11.  On 22 June 1972, the applicant was discharged by reason of physical disability with severance pay.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he held the rank of PVT/E-2 and he had completed a total of 2 years, 6 months, and 
25 days of active military service.  He had also accrued 135 days of time lost due to being in confinement.  

12.  The applicant provides a Physical Profile dated 28 October 1969 which assigned a profile of P3 based on the applicant’s bronchial asthma condition.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his SPCM was unjust and that he should have been medically retired has been carefully considered.  However, as determined during the original Board review the applicant never held a rank above SP4/E-4 while serving on active duty.  There is also insufficient evidence to support his new claim that his court-martial was unjust and he should have received a disability retirement.  

2.  The evidence of record is void of any evidence indicating an error or injustice related to the applicant’s court-martial conviction and/or his disability processing.  The medical treatment records confirm the applicant's mental condition did not become unfitting until after the applicant’s court-martial conviction.  Further, although all the facts and circumstances surrounding his processing through the Physical Disability Evaluation System are not in the available record the evidence does confirm the applicant concurred with the findings and recommendations of the PEB.  As a result, absent any medical evidence calling into question the disability rating assigned by the PEB, there is insufficient evidentiary basis to support changing his disability rating or to support medical retirement.  

3.  The applicant has failed to provide new evidence that would support a change to the original decision of this Board or that would support granting the additional requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 AR20110010594, dated 3 January 2012. 

2.  With regard to the applicant's new issue that he be awarded a disability retirement the Board further determined that the available evidence is insufficient to support this request.



      _______ _  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)                                         AR20120004423



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ABCMR Record of Proceedings (cont)                                         AR20120004423



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