IN THE CASE OF:	  

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20130020032 


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, in effect, an upgrade of his character of service and correction of his records to show he received a medical discharge with "medical pay" retroactive to his date of discharge.

2.  The applicant states he enlisted in the Regular Army at the age of 17, with parental consent, and attended basic combat training (BCT) at Fort Jackson, SC. 

	a.  He was "going through the bars one morning" during physical training (PT) and felt a sharp pain in his abdomen.  He dropped to the ground and was unable to move.  His drill sergeant, Staff Sergeant (SSG) P, came over and started screaming at him to get up.  When he told SSG P he could not move SSG P began kicking him.  SSG P kicked him for approximately 10 minutes, noticed he still was not moving, and ordered a couple of men from his platoon to take him to the dispensary.  

	b.  The dispensary rushed him to the hospital and he went into surgery the following day for a hernia and a hydrocele [a fluid-filled sac surrounding a testicle that results in swelling of the scrotum] in one of his testicles, which was the size of an orange.  He was in the hospital for about a month before he was sent home on medical leave.  When he was preparing to go on leave SSG P approached him and apologized for his behavior and negligence.  SSG P stated a lot of people going through BCT try to fake injuries so they can get a medical discharge.  

	c.  He went home on convalescent leave and did not return to the Army.  Eventually, the military police began to bother his family about his being absent without leave (AWOL).  He returned to military control; he received a 
court-martial and spent 6 months in the stockade.  When he was released from the stockade he went AWOL when his mother got sick because the Army would not let him go to see her.  His second instance of AWOL resulted in another court-martial and 6 more months in the stockade.

	d.  The attorney representing him at his second court-martial informed him he had two choices -- an undesirable discharge or a general discharge.  When he asked about the difference between the two characterizations he was told he could be drafted back into military service if he received a general discharge.  He chose an undesirable discharge because there was no way he was going to come back into the Army after everything he had already been through.  His attorney told him he could get his discharge upgraded to a general character of service after 1 year as long as he kept out of trouble.  

	e.  He lost his discharge papers and has been trying to contact various agencies to straighten out his records.  Everyone he contacted gave him the "run around" and treated him as if he never served in the military.  He still does not have a copy of his discharge papers.  He even contacted President Barack Obama.

	f.  He feels that what happened to him was unfair.  He was not treated with respect or dignity.  He would have made the Army a career if SSG P had not abused and kicked him.  He does not think that asking for a medical discharge with "medical pay" retroactive to his date of discharge is wrong because he still experiences discomfort from the operation received in BCT.

	g.  If the Army Board for Correction of Military Records (ABCMR) does not help him in this matter he will take his story to the media.  As far as he is concerned the Army railroaded and took advantage of him.

3.  The applicant provides a letter from the Army Review Boards Agency dated 21 October 2013 and an undated self-authored statement.

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 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.  His record contains a Standard Form (SF) 89 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 19 February 1968.  These forms were completed during the enlistment process and show:

* he stated he had recently suffered a five-pound weight loss due to anxiety associated with the death of a family member
* the physician who examined him noted he had a variation of the upper left arm

3.  The applicant enlisted in the Regular Army at the age of 17, with parental consent, on 26 February 1968.  He held military occupational specialty 09B (Trainee) and held the rank/grade private/E-1.

4.  His DA Form 20 (Enlisted Qualification Record) shows he had 453 days of lost time during the following periods:

* AWOL:  16 May 1968 to 1 June 1968 (17 days)
* AWOL:  3 June 1968 to 1 October 1968 (121 days)
* confined (CONF):  2 October 1968 to 14 December 1968 (79 days)
* AWOL:  6 January 1969 to 9 January 1969 (4 days)
* AWOL:  13 January 1969 to 14 January 1969 (2 days)
* AWOL:  9 February 1969 to 20 February 1969 (12 days)
* dropped from the rolls (DFR):  21 February 1969 to 25 February 1969
(3 days)
* AWOL:  27 March 1969 to 9 September 1969 (196 days)
* AWOL:  9 September 1969 to 21 September 1969 (12 days)
* CONF:  22 September 1969 to 29 September 1969 (7 days)

5.  His DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Conviction) shows Special Court-Martial Order Number 3007, issued by Headquarters, United States Army Training Center Infantry, Fort Dix, NJ, on an unknown date, shows the applicant was convicted of being AWOL from on or about 3 June 1968 to on or about 2 October 1968.  The sentence, adjudged on 

14 October 1968 and approved on 16 October 1968, included confinement at hard labor for 4 months and forfeiture of $68.00 of pay per month for 4 months.

6.  Special Court-Martial Order Number 983, issued by Headquarters, Special Troops, Fort Dix, NJ, on 7 April 1969 shows the applicant was convicted of being AWOL from on or about 25 February 1969 to on or about March 1969 and on or about 9 February 1969 to on or about 21 February 1969.  The sentence, adjudged on 28 March 1969 and approved on 7 April 1969, included confinement for 6 months and forfeiture of $73.00 of pay per month for 6 months.

7.  His record contains a mental hygiene consultation service certificate, dated 
10 April 1969, which certifies he received a psychiatric examination on 9 April 1969.  The examining psychiatrist stated:

	a.  The applicant's diagnosis consisted of an anti-social personality manifested by a disregard for rules and regulations, self-centeredness, hostility toward authority, and poor judgment.  

	b.  The applicant was free from mental defects, disease, or derangement and was able to distinguish between right and wrong and adhere to the right.  He was mentally responsible and had the capacity to understand the nature of board or judicial proceedings against him and cooperate in his own defense.  Additionally, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), there were no mental or physical defects warranting admission to, or final disposition through, medical channels.  Furthermore, he was psychiatrically cleared for any action deemed appropriate by his chain of command.

8.  His record contains notifications from two separate commanders, dated 
21 April 1969 and again on 11 August 1969, showing his commander(s) notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6a because of unfitness.  His commander advised him of his rights to have his case considered by a board of officers, to a personal appearance before a board, to submit statements on his own behalf, to representation by his appointed counsel, and to waive any of his rights in writing. The applicant acknowledged receipt of the notification that same day.

9.  His record contains an SF 89 and an SF 88, dated 18 August 1969.  These forms show:

	a.  he stated he had a hernia and hydrocele operation when he was 17 years old at the Army hospital in Fort Jackson, SC, and that the hernia was "OK."

	b.  the physician who examined him stated he had a hernia scar, an asymptomatic varicocele, a tattoo on his right arm, and an anti-social personality manifested by a disregard for rules and regulations, self-centeredness, hostility toward authority, and poor judgment.  The physician also stated he was qualified for separation in accordance with Army Regulation 635-212, paragraph 6a.

10.  His record contains a Form 1AA (Individual's Statement Separation Under Army Regulation 635-212), dated 21 August 1969, showing he acknowledged he had been advised by counsel on the basis for the contemplated separation action for unfitness in accordance with Army Regulation 635-212, paragraph 6a, its effects, and the rights available to him.  He personally made the choice to waive consideration of his case before a board of officers and his right to a personal appearance before a board of officers.  He indicated he did not wish to submit any statements on his own behalf.  He also waived his right to representation by counsel.  Additionally, he acknowledged he understood he would encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  

11.  On 9 September 1969, his commander formally recommended him for separation in accordance with Army Regulation 635-212, paragraph 6a(1), by reason of unfitness and further recommended he be furnished with an undesirable discharge.  His commander stated he was recommending this course of action because the applicant went AWOL on three occasions, was DFR as a deserter on one occasion, and had received two special courts-martial. His commander stated, due to the applicant's various disciplinary infractions, he was considered unfit for military service.

12.  On 9 September 1969, the separation authority waived further counseling and rehabilitation efforts, approved the applicant's discharge under the provisions of Army Regulation 635-212, paragraph 6a(1), and directed his discharge for unfitness.  The applicant was subsequently discharged from active duty on 
29 September 1969.

13.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged on 29 September 1969 under the provisions of Army Regulation 635-212, paragraph 6a(1), for unfitness, and received an under conditions other than honorable character of service.  He 

completed a total of 4 months and 5 days of creditable active military service and accrued 453 days of lost time.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-212, paragraph 6a(1), in effect at the time, provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

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

17.  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.  

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and 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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

19.  Army Regulation 635-40, chapter 4 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.  These findings and recommendations include a determination of whether or not the disability is combat-related as defined in U.S. Code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he received a medical discharge with "medical pay" retroactive to his date of discharge because his drill sergeant was abusive and caused him to suffer from a hernia and a hydrocele which required surgical correction.  He also states that his condition[s] still cause him discomfort.

2.  His records do not contain and he has not provided any evidence to show he was physically abused or assaulted by his drill sergeant or that his drill sergeant inflicted injuries requiring surgical correction.  However, his record does show he had surgery for a hernia and a hydrocele.  

3.  There is no evidence in the available records and he failed to submit any evidence that shows he suffered from a medical condition that would have warranted entry into PDES.  On 18 August 1969, he stated that his hernia was “OK.”

4.  His record reveals a disciplinary history including numerous instances of AWOL, one instance of DFR due to desertion, and two special courts-martial prior to his separation proceedings.  As such, his chain of command appropriately initiated separation proceedings in accordance with Army Regulation 635-212, paragraph 6a(1), for unfitness.  

5.  Based on his record of misconduct his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

6.  In view of the foregoing, there is an insufficient evidence to justify changing the basis of his separation to medical or upgrading his characterization of service to an honorable or a general discharge.



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)                                         AR20130020032





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ABCMR Record of Proceedings (cont)                                         AR20130020032



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