IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013691 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013691 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013691 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 undesirable discharge. 2. The applicant states: * his mental and physical health issues are military related * he encountered racism in the military * he spent 21 days in a mental institution because of his mental health issues related to his military service * he has received outpatient treatment for the last 10 years 3. The applicant provides no additional evidence. 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. The applicant enlisted in the Regular Army on 7 February 1969 for a period of 2 years. He completed his training and was awarded military occupational specialty 94A (food service specialist). 3. On 13 April 1970, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order, using disrespectful language toward a superior commissioned officer, absenting himself from his appointed place of duty, and failing to go at the prescribed time to his appointed place of duty. 4. On 23 June 1970, he was convicted by a summary court-martial of willfully losing government property and behaving with disrespect toward a superior commissioned officer. He was sentenced to forfeiture of $88.00 pay per month for 1 month and hard labor without confinement for 45 days. On 24 June 1970, the convening authority approved the sentence. 5. On 25 January 1971, NJP was imposed against him for damaging military property through neglect, leaving his sentinel post without authority, and sleeping on sentinel post. 6. On 2 June 1971, he was convicted by a special court-martial of being absent without leave from 7 February 1971 to 22 April 1971. He was sentenced to confinement at hard labor for 99 days and forfeiture of $70.00 pay per month for 3 months. On 28 June 1971, the convening authority approved the sentence. 7. On 3 September 1971, the following charges were preferred against him: * escaping from lawful custody * possessing heroin 8. On 19 October 1971 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf. 9. On 29 November 1971, he underwent a separation physical examination and was found qualified for separation with a physical profile rating of "111111." He indicated his present health was "Good" on his Standard Form 93 (Report of Medical History), dated 29 November 1971. 10. On 16 December 1971, he underwent a psychiatric evaluation and the psychiatrist found: * no evidence of any psychiatric disorder * he could distinguish right from wrong and adhere to the right * no indication for further psychiatric evaluation or treatment 11. On 27 December 1971, the separation authority approved his voluntary request for discharge and directed the issuance of an Undesirable Discharge Certificate. 12. On 12 January 1972, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 11 months, and 5 days of creditable active service with 335 days of lost time. His service was characterized as under other than honorable conditions. 13. In 1981, the Army Discharge Review Board denied his request for a discharge upgrade. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. a. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric b. A physical profile rating of "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. 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. DISCUSSION: 1. The applicant contends his mental and physical health issues are military related. However, there is no evidence and he provided no evidence showing he was diagnosed with any mental health or physical condition prior to his discharge. The medical evidence shows he underwent a separation physical examination on 29 November 1971 and was found qualified for separation with a physical profile of 111111. On 16 December 1971, he underwent a psychiatric evaluation and no evidence of any psychiatric disorder was found by the psychiatrist. 2. Although he contends he encountered racism in the military, there is no evidence and he provided no evidence he was the victim of racial discrimination. 3. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 4. His record of service included two NJPs, one summary court-martial conviction, one special court-martial conviction, and 335 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013691 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013691 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2