IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140017631 


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, correction of his military records by upgrading his undesirable discharge (UD).

2.  The applicant states his illness was not considered at the time he was drafted into the U.S. Army.  His problems started when he was 16 years of age and playing little league baseball.  He was a pitcher and was known for throwing a hard fast ball.  That year his back went out and he could not pitch most of the season.  He tried twice to enlist in the Army by saying he was 17 years of age, but failed the written examination.  When he was 18 years of age, he wanted to play baseball professionally but could not do so because of his back pain.  His spine was deformed and there was no cartilage in his right hip.  He was born with these conditions.  He learned to walk with the hip pain and was able to eliminate much of the pain.  In 1967, he applied for a job with a company that made shells for the government.  He was hired but had to pass a physical examination.  The doctor looked at his back said he could not do the work.  In 1968 he received a draft notice and was required to take the physical examination.  This time he was told there was nothing wrong with him and that he could join.  He told himself that he was going to do this.  However, the very first day, after he had packed his back pack and carried it, the pain returned.  He was told to go on sick call.  The doctor did no more then tell him to turn around a couple of times and found nothing wrong.  He was given some pain pills.  He took a lot of these pills and they helped when he was in the field and was active.  When sitting in class he would pass out.  The officers made him stand during classes.  Had he fallen asleep, he would have died because of the high number of pills.  His stomach felt raw and upset all of time.  His head was like a sponge.  He knew he could not do this every day, so he would leave.  He always called to let the Army know where he was so they could come and get him when he was feeling better.  He was not dodging the Army; he just could not do it physically.  In the fall of 1969, he was placed in the stockade at Fort Leonard Wood, Missouri.  This was a place where inmates were beaten and unfairly treated every day.  Because he smelled of alcohol and appeared to be drunk, he was put in maximum security.  He spent 
15 days in the “wet cell” that had no heat.  He was forced to eat what they called rabbit chow.  There was no meat and no coffee.  He only had water to drink.  He had to stand in his cell at parade rest for 15 days straight in freezing temperatures with no heat.  He was made to shower every night.  In the morning he would pick thin sheets of ice off his body.  His hands and feet were frost bitten.  He still has problems.  His hands go numb in 50-degree weather.  He cannot sleep with cover on his feet.  He cannot wear boots or thick socks, or tie anything around his ankles.  He has been on workmen’s compensation in 
St Louis, Missouri and in Anchorage, Alaska.  He does not think any of this should have happened to him because he is the only surviving son.  His sister and brother died before he was born.  His parents died when he was about 2 years of age.  During his years in public school he had monthly visits to the clinics and received medication for tuberculosis.

3.  The applicant provided no additional documentation.

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.  On 2 August 1968, the applicant was inducted into the Army of the United States and sent to Fort Leonard Wood, Missouri for his initial training.

3.  On 9 September 1968, the applicant was absent without leave (AWOL).  He was AWOL until on or about 10 October 1968.

4.  On 31 October 1968, the applicant was convicted at a special court-martial for the AWOL discussed in the preceding paragraph.  His sentence included a forfeiture and confinement for 3 months.  The confinement portion was suspended.

5.  The applicant was AWOL from on or about 2 November 1968 to 8 April 1969.

6.  On 22 April 1969, the applicant was convicted at a special court-martial for the AWOL discussed in the preceding paragraph.  His sentence included a forfeiture and confinement for 6 months.  Records show he was confined at Fort Leonard Wood, Missouri from 2 to 12 May 1969; and then was transferred to the confinement facility at Fort Riley, Kansas on 13 May 1969.  He was confined until 9 July 1969.

7.  On 12 July 1969, the applicant was assigned to Fort Dix, New Jersey for advanced individual training as a cook.  He completed this training on or about 12 September 1969 and was placed on orders for duty in Europe.

8.  On 27 September 1969, the applicant was again AWOL.  He remained AWOL until 27 October 1969, when he was assigned as a duty Soldier to the Special Processing Company, Fort Leonard Wood, Missouri.

9.  On 22 January 1970, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated that the reason for this recommendation was due to the applicant’s repeated and lengthy periods of AWOL, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior that rendered him a complete loss to the service.  Elimination due to unsuitability was not recommended because of his lack of appropriate interest manifested by a negative attitude towards those responsibilities of a Soldier.

10.  On 2 February 1970, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued a DD Form 258A (Undesirable Discharge Certificate).

11.  On 6 February 1970, the applicant was discharged under conditions other than honorable.

12.  On 1 February 1982, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

13.  The applicant’s DD Form 214 is not available for review.
14.  An NA Form 13038 (Certification of Military Service) was issued by the National Personnel Records Center on 28 June 1995.  It shows he was a member of the AUS from 2 August 1968 to 6 February 1970.  His service was characterized as under conditions other than honorable.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations):

	a.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected by upgrading his UD based on his prior illness.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant has not provided sufficient argument or convincing evidence showing that his discharge was unjust and should be upgraded.  There is no available documentary evidence connecting his repeated misconduct with any medical condition he may have had at the time.  Further, he has not provided any corroborating documentation to support his contention of being mistreated while in the Army stockade.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130021510



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ABCMR Record of Proceedings (cont)                                         AR20140017631



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