BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130018507 


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 correction of the records of his deceased father, a former service member (FSM), by:

* upgrading the FSM's character of service to honorable
* showing the FSM was discharged due to a medical condition
* restoring the FSM's 255 days of lost time
* crediting the FSM with a full 6 years of service
* showing the FSM's pes planus (flat feet) condition was in the line of duty and had not existed prior to service
* showing the FSM's periods of absence without leave (AWOL) were related to his circumcision and an infection from that surgery
* setting aside or overturning the findings of the FSM's three courts-martial
* restoring the FSM's rank and advancing him to the rank/pay grade of command sergeant major/E-9

2.  The applicant states he is mentally challenged and needs to have his father's records corrected for his eligibility for benefits.  The FSM was discharged due to prolonged hospitalization that arose following his circumcision.  The FSM was plagued with foot problems that continued throughout his life.  The FSM's courts-martial were for minor isolated events and related to his circumcision and a post-surgical infection.

3.  The applicant provides copies of:

* his birth certificate
* the FSM's death certificate
* a 1959 enlistment statement
* a 24 March 1959 Report of Medical Examination
* two pages of a DA Form 24 (Service Record)
* one page of a DA Form 20 (Enlisted Qualification Record)
* a 4 June 1962 Special Court-Martial Order
* a memorandum listing three special courts-martial
* page 1 of a 24 March 1959 Standard Form 88 (Report of Medical Examination)
* page 1 of a 28 May 1962 Standard Form 88
* 12 pages of service medical records
* 30 April 1962 DA Form 268 (Report for Suspension of Favorable Personnel Actions)
* a 24 May 1962 certificate listing sick calls
* an 8 June 1962 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Presidential Memorial Certificate
* page 3 of a social security benefits award letter
* an eviction notice

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests a copy of the FSM's entire service record.

2.  Counsel does not indicate the reason for this request or offer any statement related to the issues before the Board.

3.  Counsel provides a copy of a Standard Form 180 (Request Pertaining to Military Records) requesting the FSM's medical records and a second copy of the FSM's death certificate.

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 National Archives and Records Administration (NARA) is the official custodian of the FSM's military records.  Counsel's request for a complete copy of the FSM's military records should be directed to that agency.  The records provided by NARA to the ABCMR will be returned to NARA and should be available 60 to 90 days after the date of this decisional document.  The process for requesting the records from NARA is found on the NARA website and this issue will not be further addressed.

3.  The FSM enlisted in the Regular Army on 26 March 1959, completed training, and was awarded military occupational specialty 111.0 (Light Weapons Infantryman).

4.  Headquarters, 2d Battle Group, 3d Infantry Division, Special Court-Martial Orders Number 6, dated 9 April 1960, show the FSM was found guilty in accordance with his plea of assault of a fellow Soldier with a club.

5.  Special Troops Battalion, U.S. Army Garrison, Fort Dix, Special Court-Martial Orders Number 197, dated 22 June 1961, show the FSM was found guilty in accordance with his plea of being AWOL from 17 May through 6 June 1961 (21 days).  His sentence included reduction to pay grade E-1.  His previous conviction was considered in the sentencing.

6.  Special Troops Battalion, U.S. Army Garrison, Fort Dix, Special Court-Martial Orders Number 107, dated 30 March 1962, show the FSM was found guilty in accordance with his plea of being AWOL from 16 October 1961 through 21 February 1962.  His sentence included confinement for 6 months.  His two previous convictions were considered in the sentencing.

7.  The FSM served in confinement from 21 February 1962 through 7 June 1962 (107 days) with the remainder of his sentence to confinement being remitted effective 8 June 1962, the date of his discharge.

8.  The FSM was processed for discharge for unfitness in accordance with Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  In concert with this consideration, the FSM was afforded a mental health evaluation.  During this evaluation the FSM stated he didn't believe he could make up his lost time and remain out of trouble.  It was his desire to be separated from the service.  The attending psychologist found no mental health abnormalities and cleared FSM for any administrative actions deemed appropriate.

9.  The FSM was afforded a separation medical examination on 28 May 1962.  There were no abnormalities reported and only his circumcision surgery of 12 April 1962 was noted.

10.  The FSM was discharged under other than honorable conditions for unfitness on 8 June 1962.  He completed 2 years, 6 months, and 1 day of creditable service with 255 days of lost time.

11.  The available service medical records show that during the FSM's period of service, he was treated for several conditions, including:

* eye pain with headaches (reoccurring intermittently throughout his period of service)
* several upper respiratory infections 
* removal of a wart
* pes planus, first diagnosed on 20 November 1959, with periodic out-patient treatment
* urethritis due to gonococcus diagnosed on 22 November 1960
* a circumcision, first recommended on 24 February 1961 due to infection in the foreskin of the penis – surgery was performed on 12 April 1962 without complications, requiring only out-patient care

12.  Pes planus is a condition in which the longitudinal arch in the foot, which runs lengthwise along the sole of the foot, has not developed normally and is lowered or flattened out.  One foot or both feet may be affected.  Flat feet may be an inherited condition or may be caused by an injury.

13.  Title 10, U.S. Code, is the statutory authority under which this Board was established.

	a.  Chapter 61 provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

	b.  Section 1552 precludes any action by this Board which would disturb the finality of a court-martial conviction.

14.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provided that if, after examination by a medical officer or psychiatrist, there appeared to exist a mental or physical disability that was the cause of unfitness, a board of medical officers would be convened.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Paragraph 3-2b(1) provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Paragraph 3-2b(2) provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical or mental condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the FSM's records do not contain any evidence that the FSM sustained an injury that would have caused the development of his pes planus.  Therefore, it is reasonable to accept the military determination that the applicant's flat feet existed prior to service.

2.  The applicant has not provided and the FSM's records do not contain any evidence that the FSM was hospitalized for any condition other than to have his circumcision.  Further, other than the brief period immediately following the circumcision surgery, the FSM was treated exclusively as an out-patient for both the infections leading to the surgery and the post-surgical follow-ups.

3.  The applicant has not provided and the FSM's records do not contain any evidence that the FSM was suffering from any physical or medical condition that precluded his ability to perform his assigned duties.  Therefore, correcting the records to show the FSM was discharged due to a physical disability is not warranted.

4.  The applicant has not provided and the FSM's records do not contain any evidence that shows the FSM's circumcision had any bearing on the offenses that led to his courts-martial and discharge.  Therefore, changing the findings of the courts-martial and sentences is not warranted.

5.  While the Board has the authority to modify a court-martial sentence, it does not have authority to disturb the finality of the FSM's courts-martial convictions.  Therefore, overturning the FSM's courts-martial convictions is not an action for which the Board can grant relief.

6.  The FSM's period of lost time was the result of his AWOL or due to sentences imposed by the courts-martial.  Without a finding that the courts-martial sentences were improper or unduly harsh, restoration of the FSM's lost time is not warranted.

7.  The FSM's period of service ended with his discharge.  The type of discharge he received negated his remaining period of both his obligated active duty and Reserve service.  The FSM did not serve in an active status after his discharge.  Therefore, showing the applicant completed a full 6 years of service is not appropriate.

8.  The FSM was reduced to the lowest enlisted grade as a result of his misconduct.  The applicant has not provided and the FSM's records do contain any evidence to support a restoration of his rank and therefore retroactive promotion to command sergeant major/E-9 is not appropriate.

9.  The FSM's assault on a fellow Soldier and his 255 days of lost time due to his two periods of AWOL and period of confinement demonstrate that the FSM's service did not meet standards of acceptable conduct and performance warranting an upgrade of the character of his service.

10.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense and misconduct for which the FSM was discharged and is appropriate for the FSM's overall record of military 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 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)                                         AR20130018507



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ABCMR Record of Proceedings (cont)                                         AR20130018507



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