RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            02 DECEMBER 2003                  
	DOCKET NUMBER:   AR2003090479

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his May 1964 undesirable discharge be upgraded to honorable.

2.  The applicant states, in a self-authored statement, that he began having problems with his hips in 1960 and that the pain was so bad that at time he "would even go to the ground."  He states that he saw numerous doctors and was diagnosed with rheumatoid arthritis and given gold and cortisone shots.

3.  He states that approximately 6 months later he began having back problems and that at times his back hurt so badly he could not get out of bed in the morning.  He states that because of his back problem he once received a verbal reprimand for missing reveille and as such, he "had to start much earlier than the other troops to make reveille."

4.  He states that in 1963 he was in the hospital and was given a profile for light duty and over heard a doctor say that he thought the applicant was "a phony."

5.  Because of his continued medical problems he states that he went AWOL (absent without leave) and saw doctors, but when he returned he was sent straight back to the field.  The applicant states that he continued to go on sick call, but was getting no results and so departed AWOL again.

6.  When he returned from being AWOL, the applicant states that he asked to be discharged because he could no longer perform any military duties.  He states that he had an honorable discharge from the Army in 1962 and one from the Air Force Reserve, but this time he was given "a 208 discharge."  

7.  The applicant states that he became a truck driver after being discharged and had an "uneventful life with lots of pain."  In 1985 he was told that this back trouble "came from spondylosis" and by 1992 he could hardly walk.  

8.  The applicant, in effect, attributes his discharge to his back problem, and maintains that he raised the issue during a court-martial.  He states he needs his discharge upgraded so he can "get some of the medical help that [he] should have gotten then."

9.  The applicant provides, in addition to his self-authored statement, copies of his September 1962 honorable discharge certificate from the Army, his honorable discharge certificate from the United States Air Force Reserve, extracts from his 1963 court-martial, and a copy of a 1985 medical examination summary.  He also submits a 2003 application for aid and attendance and/or housebound benefits.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
28 May 1964.  The application submitted in this case is dated 4 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant was an enlisted member of the United States Air Force for approximately 11 months between December 1956 and November 1957.  He was honorably discharged for hardship reasons.

4.  In November 1959 the applicant enlisted and entered active duty with the Army.  He was initially assigned to Fort Dix, New Jersey, as a security guard, but was reassigned to Germany as a combat construction specialist in the spring of 1960.  By August 1962 he had attained the temporary grade of specialist E-5.

5.  The applicant's service medical records indicate that medical personnel saw him in May 1962 for lower back pain.  He indicated to medical officials that he had picked up a heavy object two months earlier and had aching pain ever since. He was diagnosed with "disc syndrome” and prescribed medication and heat.

6.  In July 1962 the applicant was again seen by medical personnel for back pain. He indicated during that visit that the pain came on gradually over the past week. He was again prescribed medication and heat, and placed on light duty.

7.  On 13 September 1962 the applicant underwent a physical examination in preparation for reenlistment.  In his report of medical history, the applicant indicated that his health was good, and noted only that he had suffered from mumps, eye trouble and had lost part of his finger prior to entry on active duty.  He made no reference to any on going back or hip pain.  The evaluating physician found the applicant fully qualified for reenlistment with a physical profile of 1-1-1-1-1-1.

8.  On 19 September 1962 the applicant reenlisted for a period of 6 years.  In November 1962 he was awarded an Army Good Conduct Medal.

9.  In March 1963 the applicant departed Europe and was assigned to Fort Benning, Georgia.
10.  On 5 July 1963 the applicant departed AWOL.  He returned to military control on 30 July 1963.  

11.  On 24 August 1963 the applicant again saw medical personnel with a complaint of back trouble.  He indicated during that visit that he had low back trouble "over past 3-4 wk [weeks]" and that he had a past history of such trouble. His reflexes were within normal limits but mobility was limited in the lumbar area. He was prescribed medication and referred to the orthopedic clinic.

12.  On 5 September 1963 he was seen at the orthopedic clinic.  He indicated to orthopedic clinic personnel that morning stiffness was his biggest problem and that he had not suffered any specific stress or trauma.  X-rays showed that his LS (lumbar sacral) spine was within normal limits, but that the "right sacro-iliac joint appears to be irregular and narrowed with some sclerosis (hardening) evident in the ileum adjacent to the joint."  The left joint was found to be normal.  The provisional diagnosis was "rheumatoid spondylitis" and the applicant was admitted to the hospital on 6 September 1963 for physical therapy, diet, and examination. 

13.  The applicant's hospital summary document notes that he was hospitalized from 6 September 1963 until 27 September 1963.  Upon initial examination, the applicant was found to be "moderately obese…who stands with a flattened and splinted lumbar spine."  He reported his "present illness" as developing "approximately 3 years prior to admission" and that he had pain intermittently mainly on the right side.  He indicated that his back pain was characterized by stiffness, especially in the early morning hours.  While hospitalized the applicant was placed on bed rest and treated with back exercises.  The provisional diagnosis was confirmed and the applicant was placed on a weight reduction diet.  The applicant's symptoms improved as a result of the hospital treatment and he was discharged to duty with a temporary profile.  

14.  On 1 October 1963 the applicant again departed AWOL.  He returned to military control on 4 October and was punished under Article 15 of the Uniform Code of Military Justice.

15.  On 7 October 1963 the applicant appeared before a special court-martial as a result of his July 1963 AWOL period.  During the court-martial proceedings, the applicant reported that the reason for his AWOL was the "result of [his] getting drunk and the fact that [he] had a bad pain in [his] back."  He indicated that he had seen military doctors but had received no help.  He indicated that he was not drunk all the time that he was AWOL, and that his “back didn't hurt him.”  He noted that the pain would come and go.  He was convicted, in accordance with his plea of guilty.  The applicant's sentence included confinement at hard labor for two months and reduction to pay grade E-1.

16.  The applicant was released from confinement on 25 November 1963 and on 10 December 1963 again departed AWOL.  He was dropped from the rolls of the Army in January 1964 and returned to military control in early February.  He was convicted by a second special court-martial and sentenced to confinement at hard labor for 6 months.

17.  In April 1964 the applicant underwent a physical examination as part of pending administrative separation action.  The applicant indicated in his report of medical history, that his health was fair and noted that he suffered from several ailments, including eye trouble, pain or pressure in chest, chronic cough, arthritis or rheumatism, frequent trouble sleeping, and an excessive drinking habit.  The evaluating physician concluded there was no mental or physical defects, which warranted medical disposition, and found the applicant medically qualified for administrative separation with a physical profile of 1-1-1-1-1-1.

18.  On 30 April 1964 the applicant's commander initiated actions to administratively separate the applicant from active duty under the provision of Army Regulation 635-208.  The commander cited the applicant's frequent incidents of a discreditable nature with civil and military authorities, including his AWOL periods, as the basis for the recommendation.  Included with the recommendation were statements from the applicant's squad leader and platoon sergeant.  Both individuals indicated that the applicant required constant supervision and had been counseled on numerous occasions regarding his appearance, personal hygiene, unpaid bills, and failing to follow directions.  The applicant acknowledged receipt of the proposed separation action and waived his attendant rights, including the right to consult with legal counsel.

19.  The recommendation was approved and on 28 May 1964 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-208.  He was issued an undesirable discharge certificate.

20.  In 1985 the applicant underwent a physical examination which noted that he had "a long history dating back to 1959 of rheumatoid arthritis…."  The examination noted that the applicant was obese, with marked fixation of the neck and thoracic and lumbar spine.  The evaluating physician concluded that in his estimation the applicant was "totally and permanently disabled."  In 2003 the applicant submitted a request for "aid and attendance and/or housebound benefits."  An evaluation completed as part of that application process noted that the applicant was suffering from respiratory failure, emphysema and was on a ventilator.  The document also indicated that the applicant had a Department of Veterans Affair's claim number.

21.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed, or rehabilitation was impracticable.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate;

22.  There is no evidence the applicant applied to the Army Discharge Review Board within the statutory time limits to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  Although the evidence does show that the applicant was treated for a back condition while on active duty, he has presented no evidence that the back condition was so debilitating that it would justify his various periods of AWOL.  

2.  The evidence shows that following his brief period of hospitalization, his back condition was such that it only warranted a temporary profile and that at the time of his separation he had no physical profile at all.  There is no evidence that the applicant had any medical condition which prevented him from performing his military duties.

3.  The applicant's administrative separation was accomplished in compliance with applicable laws and regulations.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  While the applicant’s desire to upgrade his discharge in order to receive medical assistance is noted, it does not outweigh the seriousness of his conduct while in the military and does not provide an adequate basis upon which to grant relief at this time.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 28 May 1964; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 May 1967.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __MHM  _  __PHM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested or to excuse the applicant's failure to file this application with the ABCMR within its 3-year statute of limitations.  Therefore, the Board does not excuse the applicant's failure to timely file within the time prescribed by law and this application is denied for that reason.

		____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090479	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031202	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.