IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140016441 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable or medical discharge.

2.  The applicant states two commissioned officers in the rank of captain (CPT) conspired to get him separated from the military and misled him to do just that.  He was hurt really bad when a jeep driven by another Soldier, who was allowed to drive over 14 hours nonstop while on a training exercise, flipped over three times.  His arm was bent behind his back and his back was badly hurt.  They were all seen by a medic, given 3 days off, and then returned to work.  He continued to experience pain.  He was sent to CPT Cxxxxxxx for what he thought was mental counseling for mental issues.  He then overheard CPT Mxxxxxxx tell CPT Cxxxxxxx to get him out of the military before he tried to get out on a medical discharge.  A co-worker, who currently resides in NY, was a witness to all of this. 

3.  The applicant provides a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim) and a completed DD Form 293 (Application for the Review of Discharge 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 6 February 1976.  He was awarded military occupational specialty 94B (food services specialist).  He was advanced to pay grade E-2 on 6 June 1976.  He served in Germany from 1 July 1976 through 27 June 1978.

3.  His records contain several Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care) which show he was seen in the Troop Medical Clinic and received treatment between March 1976 and 1 October 1977 for pes planus; itching of his face; dizziness and headaches; and back, knee, and right foot pain.

4.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 20 July 1977 – being derelict in the performance of his duties on 24 May 1977; his punishment included a 6-month suspended reduction to pay grade E-1, a forfeiture of $87.00 per month for 1 month, and 14 days of extra duty and restriction
* 1 August 1977 – resisting lawful apprehension by an Armed Forces Policemen and being drunk and disorderly on 1 July 1977; his punishment included a 37-day suspended reduction to pay grade E-1, a forfeiture of $100.00 per month for 1 month, and 37 days of extra duty and restriction

5.  On 15 September 1977, his suspended reduction to pay grade E-1 was vacated and ordered executed.

6.  Two DA Forms 3349 (Medical Condition – Physical Profile Record), dated 28 September and 26 October 1977, show he was assigned a physical profile for Pseudofolliculitis Barbae with restrictions to shave every fourth night for 21 days.

7.  He accepted NJP under Article 15, UCMJ, on/for:

* 16 December 1977 – missing through his design a headquarters movement and absenting himself from his unit on 10 October 1977; his punishment included a forfeiture of $198.00 per month for 2 months and 45 days of extra duty and restriction
* 9 March 1978 – wrongfully appearing in an improper uniform on 28 November 1977 and failing to go to his appointed place of duty on 26 January 1978; his punishment included a forfeiture of $50.00 per month for 1 month and 14 days of extra duty and restriction

8.  His records also contain the following:

   a.  An SF 88 (Report of Medical Examination) which shows he underwent a medical examination on 28 March 1978 for the purpose of a chapter 13 (unsatisfactory performance) separation and was found qualified for a chapter physical.

   b.  An SF 93 (Report of Medical History) completed at the time of his medical examination on 28 March 1978.  He indicated he was in perfect health before a jeep accident 6 months before, frequent back problems.  The examining medical doctor stated that the applicant complained of depression, headaches, backache, insomnia, nerves, periods of amnesia, foot trouble, locked knee, weight loss, leg cramps, frequent indigestion and dizziness.  However, the applicant moved and could remove his clothes with remarkable ease for someone who had all those complaints.  The applicant appeared to have no trouble with gait, stooping, bending or use of upper extremities.  In his opinion the applicant had no joint problems whatsoever.

9.  On 4 April 1978, the applicant’s company commander recommended the applicant be discharged because of frequent incidents of a discreditable nature under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-33b(1).  He stated the applicant's discharge was recommended because of frequent incidents of a discreditable nature with military and civil authorities.  The applicant clearly demonstrated his lack of self-discipline which resulted in numerous incidents of misconduct as evidenced by Article 15s and several other incidents of uncharged misconduct.  The applicant had been a constant disciplinary problem since being assigned to that unit.  He required constant supervision to accomplish even menial tasks.  His attitude, military bearing, and substandard appearance and hygiene rendered him unacceptable for continued military service.

10.  On 4 April 1978, the applicant's company commander notified the applicant of the proposed discharge and advised the applicant of his rights.

11.  On the same day, the applicant acknowledged receipt of the proposed action and that he would furnish his election by the indicated suspense date.
12.  On 24 April 1978, the applicant’s battalion commander recommended approval of the applicant's discharge.  The battalion commander stated that approximately 6 months prior an attempt was made to rehabilitatively transfer the applicant to another battalion.  The commander of that battalion was contacted; however, due to the applicant's extremely poor military records, that commander would not accept the applicant as a rehabilitative transfer.  

13.  On 28 April 1978, he accepted NJP under Article 15, UCMJ, absenting himself from his place of duty from 3 to 4 April 1978.  His punishment included a forfeiture of $198.00 per month for 2 months and 45 days of extra duty and restriction.

14.  On 16 May 1978, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he could receive a general or a UOTHC discharge and the results of the receipt of a UOTHC discharge.  He waived his rights and indicated he would submit a statement in his own behalf.  He did not submit a statement.

15.  On 22 May 1978, the applicant's company commander stated that applicant had elected to have his case heard before a board of officers and requested personal appearance before that board.  Shortly after the applicant made his election of rights known he went absent without leave (AWOL).  Upon his return from AWOL the applicant stated that he had changed his mind and elected to waive his rights and accept the chapter 14 discharge.

16.  On 9 June 1978, the separation authority approved the applicant's discharge and directed the issuance of an UOTHC Discharge Certificate.

17.  He was discharged accordingly in pay grade E-1 on 28 June 1978.  He was credited with completing 2 years, 3 months, and 20 days of active service and 33 days of lost time.

18.  On 30 October 1979, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-33b - members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for misconduct.  A UOTHC discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.
	b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

21.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, in effect at the time, provided that for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his officer, grade, rank, or ratings.  Members with conditions, as listed in this chapter, were considered medically unfit for retention on active duty and were referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  With regard to an honorable discharge:

   a.  The applicant’s company commander stated the applicant clearly demonstrated his lack of self-discipline which resulted in numerous incidents of misconduct as evidenced by Article 15s and several other incidents of uncharged misconduct.  The company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for frequent incidents of a discreditable nature with military and civil authorities.  The separation authority approved the applicant's discharge and he was discharged accordingly on 28 June 1978.

   b.  He provided no evidence or convincing argument to show that his UOTHC discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.
   c.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

2. With regard to a medical discharge:

   a.  His contentions were carefully considered.  However, the available evidence shows he sought and received medical treatment for numerous minor medical conditions to include back pain during his period of service.  There is no available evidence and he provided none showing he suffered a disabling condition(s) during his period of service that would have supported his processing for a medical discharge through medical channels.  

   b.  In view of the foregoing, there is insufficient evidence to support granting him 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)                                         AR20140016441





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016441



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1