IN THE CASE OF:  	  

		BOARD DATE:  28 May 2015	  

		DOCKET NUMBER:  AR20140017775 


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 reconsideration of his earlier request to upgrade his other than honorable conditions discharge to read honorable discharge under medical conditions.

2.  The applicant states, in effect:

* in November 1964 he was assigned to the 15th Medical Battalion in Korea
* while there he was sent on temporary duty to another compound
* on the way back to his unit to renew his trip ticket he had an accident
* the conditions were icy and there was snow on the road
* his vehicle ran off the road and he sustained a head injury
* on his return to his unit, he explained what had occurred and was instructed to seek medical care at the infirmary
* they took x-rays at the infirmary and confirmed his head injury
* shortly after this, he began to have black-outs; he would be working and, without being conscious of it, he would wander off
* the black-outs and his wandering off caused him to receive nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
* about 2 months after the start of his black-outs he left his compound and was later found in the local village
* he was brought before his commander who told him he would be sent home with a medical discharge
* the commander added the stipulation he would first have to receive a summary court-martial
* following the summary court-martial he was sent to Oakland, CA to be discharged

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100016375, on 23 December 2010.

2.  The applicant submitted his initial application on 17 May 2010, which was denied.  This current request was sent on 2 October 2014 and falls outside the 
1-year time limit for requests for reconsideration.  While the applicant offers no new evidence, he does assert a new argument.  In view of this, and as a one-time exception to the policy, this request warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 22 October 1963.  After completing initial training, he was awarded military occupational specialty (MOS)
911.10 (Medical Specialist).  The highest rank/grade held was private first class/E-3.

4.  He accepted NJP under the provisions of Article 15 of the UCMJ on 29 January 1964, while in advanced individual training, for being absent without leave (AWOL) from 23 January 1964 to 24 January 1964.

5.  He was honorably discharged on 25 October 1964 for the purpose of immediate reenlistment.  He subsequently served in Korea from on or about 17 December 1964 to on or about 2 November 1965. 

6.  His records show, while in Korea, he again accepted NJP under the provisions of Article 15 of the UCMJ as follows:

* On 17 February 1965, for failing to perform maintenance on his assigned vehicle
* On 6 July 1965, for violating curfew

7.  On 20 August 1965, he was convicted by a special court-martial of one specification of absenting himself from his appointed place of duty and for willfully disobeying a lawful order from a superior officer.  The court sentenced him to reduction to private (PV1)/E-1, confinement at hard labor for 1 month (suspended), and a forfeiture of $55.00 pay for per month for 1 month.  The convening authority approved his sentence on 1 September 1965.

8.  On 1 September 1965, he was convicted by a summary court-martial of one specification of leaving his post as a sentinel without being properly relieved.  The court sentenced him to a forfeiture of $60.00 pay and 45 days of hard labor without confinement.  The convening authority approved his sentence on
8 September 1965. 

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain the following official documents:

	a.  Special Orders Number 306, dated 2 November 1965, issued by Headquarters, U.S. Army Personnel Center, Oakland, CA, ordering him to be discharged effective 2 November 1965 for unfitness with the issuance of a DD Form 256A (Undesirable Discharge Certificate).

	b.  A letter from an assistant adjutant, Headquarters, U.S. Army Personnel Center, Oakland, CA, dated 2 November 1965, informing him that he was issued an undesirable discharge from the Army and that he had the option of petitioning the Army Discharge Review Board (ADRB).  The applicant acknowledged receipt of this memorandum indicating he read the letter and fully understood that he could apply to the ADRB for a review of his discharge within 15 years after the effective date of his discharge.

	c.  A DD Form 214 that shows he was discharged from the Army on 2 November 1965 in the rank/grade of PV1/E-1, with a date of rank of 1 September 1965, under the provisions of Regulation 635-208 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with a character of service of under other than honorable conditions.  He completed 2 years and 10 days of net active creditable service.

10.  His record is void of any information that would show he sustained any head injuries or was treated for such injuries in an Army medical facility.

11.  There is no indication that he petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-208, in effect at the time, set forth the policy for the administrative separation of enlisted personnel for unfitness.  Paragraph 3 of the regulation provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:
* frequent incidents of a discreditable nature with civil or military authorities
* sexual perversion
* drug addiction
* an established pattern of shirking; and/or
* an established pattern showing dishonorable failure to pay just debts

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides policy and procedures for the separation of enlisted personnel.

   a.  Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.
   
   b.  Paragraph 3-7b states 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.

14.  Army Regulation 635-40 A and 635-40 B (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures regarding the determination as to whether a Soldier is physically fit to perform the duties of his/her rank and MOS.  

	a.  Medical evaluation boards (MEB) are convened to document any conditions which may not meet medical retention standards.  Where a Soldier's medical condition(s) fail retention standards, his/her case is then referred to a physical evaluation board (PEB) for a fitness determination.  

	b.  In those cases where the PEB finds the Soldier unfit for continued military service, a disability rating is determined using the Department of Veterans Affairs Schedule for Rating Disabilities.  

DISCUSSION AND CONCLUSIONS:

1.  In his request for reconsideration, the applicant offers a new argument which essentially asserts he suffered from black-outs resulting from a head injury sustained in a vehicle accident.  He further contends these black-outs led to disciplinary action under the UCMJ and, ultimately, his discharge.  He states he believed he was being sent back to the U.S. from his unit in Korea to receive further medical treatment and then a medical discharge.  He was instead separated for unfitness.

2.  The applicant offers no evidence to support his contentions.  His record, however, provides sufficient basis for his unit to have separated him for unfitness.

	a.  He was administered and accepted NJP on three occasions.

	b.  He was convicted first by a special court-martial, then a summary court-martial.

3.  Lacking evidence to the contrary, the applicant's separation is presumed to have been administratively correct, and in compliance with applicable regulations.  Further, there is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case. 

4.  Based upon the foregoing, there is insufficient basis upon which to grant 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 to amend the decision of the ABCMR set forth in Docket Number AR20100016375, on 23 December 2010.


      _______ _   _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)                                         AR20140017775





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ABCMR Record of Proceedings (cont)                                         AR20140017775



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