MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  22 June 2000
	DOCKET NUMBER:  AR1999030645

	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.

	Mr. Carl W. S. Chun		Director	
	Mr. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Arthur A. Omartian		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:  Correction of his military records by upgrading his undesirable discharge to a medical discharge.

APPLICANT STATES:  In effect, that he has been trying to correct his records for more than 32 years; that his records show clear evidence that he never completed basic training due to an injury to his neck and spine at the hands of his drunken drill sergeant; that the Army fabricated records and covered up this incident; and that he should have been granted a medical discharge for his first period of service.  His application also included a recent clinical evaluation dated 1 July 1999, for a herniated disc.

COUNSEL STATES:  It is the applicant’s position that he should have been retired from the service because of physical disability.  He states that because of his many disabilities, which he claims are service-incurred, he cannot work or have gainful employment.  He states that he was put on light duty during his second enlistment.  He is presently receives 20% VA disability compensation for a knee condition which has resulted from an injury which occurred in the service.  He also states that the following conditions had their onset while in the service: hemorrhoids, residuals of pneumothorax, lumbar vertebra with low back pain, recurrent upper gastrointestinal bleeding, hypertension, neck strain, seizures, bronchitis, psychiatric disorder, hearing loss, and post concussion syndrome.  He states that he was injured in the service in 1967 by a drill sergeant.  He said his back and neck were injured on that occasion.  The veteran states that all of these disabilities occurred during his military service and, therefore, he feels that he should have been retired form the service.

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

He had a prior 2-year enlisted service commitment in the Regular Army (RA) beginning on 19 January 1967, wherein he was separated under conditions other than honorable in accordance with Army Regulation (AR) 635-212 on 9 August 1967, after completing only 2 months and 1 day of creditable service and 143 days of lost time due to AWOL.

AR 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

While attending basic training during his initial period of service, his basic training unit commander issued him a formal counseling statement regarding his poor duty performance.  The counseling statement described him, in effect, as an apathetic trouble maker who had made considerable trouble for himself and his unit; and that he got off to a bad start in his unit by his unwillingness to accept authority or discipline after two failed enlistment attempts before he was finally accepted for military service as a Category 
5, 2-year enlistee.  The counseling statement further stated that he refused to participate in physical training on several occasions; that he went on sick call 8 days out of 12 for an alleged bad back; that after examination by 2 doctors, they determined that he was faking his back trouble; and that he was convicted by summary court-martial for malingering.  There was nothing in his records to indicate that he had been assaulted or treated for any type of injury during basic training.  Also, there was nothing contained in his records to indicate that he should have been referred for separation processing through medical channels.

He enlisted in the RA again on 9 December 1968, for a period of 2 years without acknowledging his prior service.  He completed his initial training at Fort Dix, New Jersey and was subsequently assigned to duties there in military occupational specialty (MOS) 57A, duty soldier, and MOS 11B, instructor’s aide. 

During his second enlistment, several acts of misconduct resulted in nonjudicial punishment by Article 15, the first on 18 December 1968, for being disrespectful in language toward a noncommissioned officer and the second on 27 January 1969, for disobeying a lawful order.  His punishments included forfeiture of pay totaling $122.00 and 14 days of restriction and extra duty.

On 16 April 1969, Army officials advised his basic training commander that his current enlistment was fraudulent because he concealed his record of prior service.  There was nothing contained in his records to show that his chain of command initiated separation proceedings in view of the report of his fraudulent re-entry.

On 15 May 1970, he was tried by special court-martial for AWOL from 20 March 1969 to 16 April 1970 and found not guilty.  There was no record of trial in his records.  On 2 March 1971, he was convicted by special court-martial for assaulting another soldier.  He was sentenced to confinement at hard labor for 2 months, suspended, and forfeiture of $95.00 per month for 
2 months.

On 31 March 1971, a report of medical examination found him qualified for separation.  His DD Form 214, separation document, shows that he was separated in the rank of private (PVT E-1) under honorable conditions for the expiration of term of service (ETS) in accordance with Army Regulation 
635-200. He had completed 2 years, 1 month and 28 days of creditable service and 25 days of lost time.  He was held for 1 month and 28 days past his normal ETS for the convenience of the government.

On 12 December 1994, he applied to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his general discharge which was subsequently denied on 26 September 1995 because he failed to apply within the 3-year statutory time limit and that there was no justification in the evidence of record to waive his failure to timely file his application in the interest of justice.  

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his initial discharge within its 15-year statute of limitations.

Army Regulation 635-40 pertains to physical evaluation for retention, retirement, or separations of RA and USAR personnel and provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform in his or her office, rank, grade, or rating.  The regulation further provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only be clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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

1.  The applicant’s request lacks merit in light of the evidence of record and evidence submitted by the applicant.

2.  The Board concludes that his allegations are not credible.  The Board found nothing contained in his records or in the evidence submitted by him to substantiate his allegation of an assault by a drunken drill sergeant or that

such an assault resulted in medical treatment.  Also, there was nothing in his records to indicate that the alleged assault was covered up by military officials or that it rendered him incapable of performing his assigned duties thereby warranting referral to medical channels to determine his fitness for continued service.

3.  The Board further concludes that the evidence of record clearly shows his initial separation, after only 2 months of creditable service, was based on extremely poor performance, conduct, and behavior, including nearly 
5 months of AWOL; his unwillingness to adapt to military standards; and his apathy toward military authority and discipline.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  In order to justify correction of a military record, the applicant must show to the satisfactions 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 this requirement.

6.  in view of the foregoing, there is not 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

__LS___  __RA____  __AO____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999030645	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNFITNESS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.