MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2000                   
	DOCKET NUMBER:   AR1999028390

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge under other than honorable conditions (UOTHC) be changed to a medical discharge.

APPLICANT STATES:  That he had served a prison term as a convicted felon and had been shot in the back three times by police in 1964 when he received his draft notice.  His personal physician had said he was not physically fit or qualified to attend any military training.  However, the military physician determined he was fit for service, despite evidence in plain view that he had been shot, and he was inducted.  His ability to serve was impaired by medical, physical and or psychological problems.  The punishment he received was too severe compared with today’s standards.  His discharge was not the result of his being court-martialed or any misconduct, it came about as a result of his failing to salute a general officer.  He was led to believe his discharge would be automatically upgraded after 6 months.  He provides his DD Form 214, DA Form 20, induction and separation Reports of Medical Examination, his Article 15 and courts-martial, three U. S. Government Memorandums concerning his good progress in a prison educational program, one report of group psychotherapy progress and one prisoner program and work assignment evaluation as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records show:

He underwent his pre-induction physical examination on 2 August 1966.  The   SF 88, Report of Medical Examination is annotated with the entries “multiple scars - gunshot wounds” and “no active urethritis demonstrated”.  No additional defects were discovered and he was found fit for military service.  On 4 October 1966, he was inducted into the Army.  

On 18 November 1966, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for absenting himself from his unit. His punishment was a forfeiture of $20.00 pay and extra duties for 14 days.

The applicant’s DA Form 20, Personnel Qualification Record, shows he completed basic combat training and was given “excellent” conduct and efficiency ratings.

On 27 March 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 3 January – 1 March 1967.  His approved sentence to be confined at hard labor for 2 months (suspended for       6 months) and hard labor without confinement for 1 month and to forfeit $60.00 pay for 3 months.  

On 12 June 1967, the applicant completed a psychiatric evaluation.  No evidence of any mental of physical defects was found which would have warranted disposition via medical channels.  He was found to be mentally responsible, capable of distinguishing right from wrong and of adhering to the right and to possess sufficient mental capacity to act in his own behalf in administrative procedures.  He was diagnosed with dissocial personality with emotionally unstable features.

Two entries in the applicant’s medical records for 12 and 13 June 1967 note “…having cramps in abdomen…since 1965 when he had intestine (6 ft) removed following gunshot wound…” and “…wounded in Detroit 1965 by the police – colostomy…,” respectively. 

On 15 June 1967, the applicant was recommended for elimination under the provisions of Army Regulation 635-212 for unfitness.  His commander noted that he displayed a definite pattern that he would not conform to military standards and discipline.

On 15 June 1967, the applicant waived consideration of his case by a board of officers, waived personal appearance before a board of officers, waived representation by counsel and did not submit a statement in his own behalf.

On 27 June 1967, the applicant completed his separation physical examination.  The SF 88 is annotated with the entries “ROM R shoulder,” “2 back scars,” and “being rx for bleeding ulcer” (with a diagnosis of peptic ulcer).  It was recommended he be referred to “Med” and “Ortho.”  No further medical evidence is available.  This document does not indicate whether he was or was not qualified for separation.

On 27 July 1967, the applicant was convicted by a special court-martial of being AWOL from 3 – 7 April 1967 and from 11 April – 5 June 1967.  He was sentenced to confinement at hard labor for 6 months and to forfeit $64.00 pay for 6 months. 

On 11 August 1967, the unexecuted portion of the applicant’s sentence to confinement at hard labor and forfeiture was remitted and he was discharged, with a discharge UOTHC, under the provisions of Army Regulation 635-212, unfitness, for frequent incidents of a discreditable nature.  He had completed      4 months and 4 days of creditable active service and had 185 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

Army Regulation 635-200 superseded Army Regulation 635-212.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  Paragraph 4-3 states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established which would require automatic change or denial of a change in discharge.

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency (SEE ATTACHED).  A copy of the advisory opinion was provided to the applicant and he did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board notes that waivers for civil convictions are available and were frequently granted during the time period the applicant was inducted.  The Board notes that he has provided no evidence to show the extent of his disabling condition at the time of his induction, 2 years after he was shot.  However, the Board does note that he successfully completed basic combat training with “excellent” conduct and efficiency ratings and presumes therefore that he was not physically unfit for military duty.  If military service had been aggravating a medical problem, he did not stay under military control long enough to have the problem resolved within established procedures.  

3.  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.  Since he was processed for separation under a regulatory provision which authorized a characterization of service of UOTHC, (considering the number and lengths of his AWOLs the Board concludes he was properly separated with such a characterization of service), he was not eligible for referral for physical disability processing.

4.  The Board concludes the punishment (type of discharge) he received was not too severe compared with today’s standards.  His discharge was the result of his misconduct.  Under today’s standards he would most likely have received a Chapter 10 discharge prior to receiving his second court-martial.  A discharge UOTHC is normally considered appropriate for that type of discharge, also.  

5.  The U. S. Army has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  The Board concludes the merits of the applicant’s case do not warrant an upgrade.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __mkp___  __vbc___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028390	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19670811	
DISCHARGE AUTHORITY	AR 635-212 	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.