IN THE CASE OF:	  

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130006639 


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 his undesirable discharge be changed to show he was discharged by reason of medical disability.

2.  The applicant states:

	a.  He was given an undesirable discharge for the good of the service.  He should have been given a medical discharge because of a back injury or at least a general, under honorable conditions discharge.  He was never given a general court-martial or any other type of court-martial.  He never should have been allowed in the Army with his spina bifida, much less go airborne.

	b.  The Department of Veterans Affairs (VA) will not grant him any benefits until he gets an updated DD Form 214.  They are still going by the original DD Form 214 which had been upgraded and "degraded" many times.  He needs a final DD Form 214 that the VA will finally accept.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* two Standard Forms (SF) 88 (Report of Medical Examination), dated 22 January 1969 and 12 August 1971
* DA Form 2496 (Disposition Form), dated 14 May 1971
* three DA Form 3349 (Medical Condition - Physical Profile Record), dated 13 November 1970, 15 March 1971, and 19 October 1971
* five pages of SFs 600 (Chronological Record of Medical Care), dated between 13 November 1971 and 26 April 1971
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 June 1971
* two Army Discharge Review Board (ADRB) Case Report and Directive forms, dated 23 May 1977 and 5 June 1978
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), dated 23 October 2007
* two letters

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.  In conjunction with the applicant's enlistment in the Regular Army (RA), he completed an SF Form 89 (Report of Medical History) on 22 January 1969 wherein he stated he was in good health and had not been treated for previous illnesses except for the mumps, broken bones, boils, and a reaction to serum, drug or medicine.  He also indicated he had been hospitalized at the age of 7 for the removal of his tonsils.

3.  His records contain an SF Form 88, dated 22 January 1969, wherein it shows his eyes were examined and he was found to be airborne qualified as he could distinguish red and green colors.  He was also found to be qualified for enlistment in the RA 

4.  On 14 February 1969, he enlisted in the RA.  He successfully completed basic combat training and advanced individual training (AIT) and on 27 June 1969 he was awarded military occupational specialty (MOS) 91A (Medical Corpsman).  He successfully completed airborne training and on 16 July 1969 he was awarded the parachutist badge.  On 23 July 1969, he was assigned to the 8th Medical Evacuation Hospital, Fort Ord, CA.

5.  He received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, as follows on:

* 6 January 1970, for disobeying a lawful order and for failing to go to his appointed place of duty
* 16 April 1970, for failing to go to his appointed place of duty

6.  On 8 October 1970, he was convicted by a summary court-martial of disobeying a lawful order. 

7.  On 12 November 1970, he was assigned to the 2nd Battalion, 321st Artillery Regiment, Fort Bragg, NC, in MOS 91B (Medical Specialist). 

8.  The applicant provides a:

	a.  SF Form 600 that shows he was seen on 13 November 1970 at the unit aid station, Fort Bragg, NC, for a complaint of low back pain for 1 year.  He was referred to the Orthopedic Clinic, Fort Bragg, NC, for a possible aggravation of a congenital defect.  

	b.  DA Form 2496, dated 13 November 1970, that shows he was given a temporary (T) 3 profile for his physical condition that expired upon his orthopedic appointment, required no major assignment limitations, and stated no parachuting.

9.  On 19 November 1970, he was assigned to the 2nd Battalion, 325th Infantry Regiment, Fort Bragg, NC, and he was subsequently awarded MOS 11B (Light Weapons Infantryman). 

10.  He received NJP under the provisions of Article 15, UCMJ, on 3 December 1970, for disobeying a lawful order and for being disrespectful in language to an noncommissioned officer.

11.  The applicant provides an SF Form 600 that shows he was seen at the Orthopedic Clinic, Fort Bragg, NC, on 28 January 1971 for a complaint of low back pain for the past 2 years.  The examining physician stated his range of motion was found to have no limitation, his sensory and motor functions were found to be normal, and he had a palpable large defect over part of his lower back.  His T-3 profile was extended for 2 months. 

12.  The applicant provides a DA Form 2496, dated 14 May 1971, that shows he was given a permanent (P) 3 profile on 15 March 1971 for spina bifida that restricted his duty assignments and physically disqualified him from airborne status.  This form stated he was removed from parachute status effective 24 April 1971 and would be retained in his unit due to being in a disciplinary status (emphasis added).  

13.  He received NJP under the provisions of Article 15, UCMJ, on 18 June 1971, for failing to go to his appointed place of duty 

14.  On 12 August 1971, he underwent a medical examination for separation processing.  The examining physician noted that he (the applicant) had spina bifida and he was found qualified for separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

15.  On 13 November 1971, court-martial charges were preferred against him for one specification each of possession of cocaine and possession of a brass pipe containing marijuana.  

16.  On 22 November 1971, after consulting with legal counsel he submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  

17.  In his request, he acknowledged that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

18.  On 27 December 1971, the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate.  On 6 January 1972, he was discharged accordingly.

19.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 2 years, 10 months, and 22 days of creditable active service

20.  On 23 May 1977, the ADRB upgraded the applicant's discharge to a general discharge under the SDRP.  The DD Form 214 he had been issued was voided and he was issued a new DD Form 214 (Report of Separation from Active Duty) to reflect the characterization of his service as under honorable conditions with the issuance of a General Discharge Certificate.
21.  On 30 June 1978, the ADRB conducted a second review of the applicant's upgraded discharge under the uniform standards for discharge review, in effect at that time, and voted not to affirm the applicant's discharge due to his numerous acts of indiscipline.  The applicant was informed that under a new law his discharge would not qualify him for benefits under the VA.

22.  On 23 October 2007, the ABCMR denied his request that his previously-upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he may obtain VA benefits.

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that an honorable or general discharge is authorized.  However, at the time an undesirable discharge was normally considered appropriate.

24.  Army Regulation 635-200, paragraph 3-7a, provides 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.  

25.  Army Regulation 635-200, paragraph 3-7b, provides that a 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.  

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  This regulation also states an enlisted member may not be referred for physical 

disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.

27.  The SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general, under honorable conditions discharge was warranted in a particular case.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service corrections boards in order to authorize the service member VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant may have had spina bifida as a youth, the evidence of record confirms he was found fully fit for enlistment and he enlisted in the RA on 14 February 1969.  The evidence of record shows and the medical documentation the applicant provided confirms he was able to perform his military duties for over 19 months and he only went on sick call for a complaint of low back pain on 13 November 1970, just prior to his being assigned to an infantry unit for training in MOS 11B.  

2.  On 14 May 1971, his termination from airborne status was approved effective 24 April 1971, based on his P-3 profile for spina bifida and it was determined he was medically qualified for permanently restricted duty.  However, this approval form also stated he would be retained in his unit due to being a disciplinary case.  In the absence of evidence to the contrary, it can be presumed at that time his command was ready to initiate discharge action against him.  In accordance with governing regulations, a Soldier may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.

3.  The evidence of record confirms that he was subsequently charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights of were fully protected throughout the separation process and he was discharged with an Undesirable Discharge Certificate.

4.  The ADRB subsequently upgraded his discharge to a general discharge but after a review of his case, and based on his record of service, the ADRB determined his service was not satisfactory and his general discharge was not affirmed.

5.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

6.  In view of the foregoing, he is not entitled to the 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)                                         AR20130006639





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ABCMR Record of Proceedings (cont)                                         AR20130006639



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