IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150003807 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 his under conditions other than honorable discharge be changed to a medical discharge. 2. The applicant states: a. He was originally scheduled to be separated from service with a medical discharge due to problems with his back and feet while stationed at Fort Meade, MD. In March 1973, his commanding officer (CO) asked him if he would reenlist and the applicant told him "no." His CO began calling him names, grabbed him by the shirt collar, and started wrestling with him. b. The military police came and arrested the applicant. He was flown to Fort Riley, KS, and placed in the stockade for nine months. He was offered a discharge and he accepted it so he could get out of the Army and return home to Shreveport, LA. c. He would like his discharge changed for posterity, so his children and grandchildren will not look at his service as a bad thing in his life. He further states that he and a friend volunteered for the draft and both signed a two-year contract to stay together during the entirety of their tour; however, they were separated right after basic training. The applicant feels this was a breach of contract. 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 (RA) on 3 May 1971, for the RA enlistment option. His record contains a DA Form 3286-3 (Statements for Enlistment), dated 3 May 1971, in which he acknowledged his initial assignment to training and/or duty would be determined in accordance with the needs of the Army. His enlistment for this option carried with it no guarantee or implied promise that he would be assigned to a specific training, duty, or location, notwithstanding any personal qualifications, previous training, job experience, or personal desires which he may have had. He subsequently performed basic and advanced individual training at Fort Polk, LA. 3. His record contains: a. Summary Court-Martial Order Number 76, issued by the Second Basic Combat Training Brigade, U.S. Army Training Center, Infantry, Fort Polk, LA, dated 9 June 1971, in which the applicant pled not guilty, but was found guilty of stealing a tape recorder and earphones from the Main Post Exchange. The applicant was sentenced to perform hard labor without confinement for 23 days; forfeiture of $89.00 pay for one month; and to be restricted to the company area for 23 days. The sentenced was adjudged on 8 June1971, and approved on 9 June 1971. b. Special Court-Martial Order Number 17, issued by Headquarters, 2nd Brigade, 4th Infantry Division (Mechanized), Fort Carson, CO, dated 10 April 1972, in which the applicant pled not guilty, but was found guilty of absenting himself from his unit without authority for the period 31 December 1971 to 23 February 1972. He was sentenced to be reduced to the grade of private/E-1, to be confined at hard labor for 50 days, and to forfeit $50.00 pay per month for four months. The sentence was adjudged on 28 March 1972, and approved on 10 April 1972. c. A memorandum, issued by the Commander, Headquarters and Headquarters Troop, 1st Squadron, 6th Armored Cavalry, dated 26 September 1972, in which it was noted the applicant was dropped from the rolls as a deserter on 28 September 1972. d. DA Form 19-32 (Military Police Report), dated 7 October 1972, in which the applicant was apprehended and investigated for larceny of private property, being absent without leave (AWOL), and possession of marijuana. 4. On 7 October 1972, he underwent a separation physical examination. A mental examination was not evident in his records; however, the attending physician indicated the applicant was qualified for separation from service. 5. On 9 November 1972, court-martial charges were preferred against the applicant for one specification of being AWOL for the period 31 August to 6 October 1972. 6. On 22 November 1972, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions. He was advised of the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, the applicant voluntarily and without having been subjected to any coercion, requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 7. In his request for discharge, the applicant indicated he understood that by requesting a discharge he was advised of the implications attached to it and that if his request for discharge was accepted, he may be discharged under other than honorable conditions, and furnished an Undesirable Discharge Certificate. He understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he may expect to encounter substantial prejudices in civilian life by reason of an undesirable discharge. Statements in his own behalf were not submitted. 8. On 20 December 1972, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. On 20 December 1972, the applicant was accordingly discharged. 9. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under conditions other than honorable discharge. He completed 1 year, 3 months and 3 days of total active military service with 135 days lost time. 10. Evidence shows the applicant petitioned the Army Discharge Review Board to upgrade his discharge. On 6 March 1974, the Board denied his request. He subsequently applied to the ABCMR to upgrade his discharge. On 26 December 1974, the ABCMR determined that insufficient evidence had been presented to indicate probable material error or injustice in his case and accordingly, his case was denied. 11. 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 VA 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 an individual who was discharged for the good of the service at the time the applicant was discharged. 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. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 3-1 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 may reasonably be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 13. Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties, may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), may compromise the health or well-being of other Soldiers, and/or may prejudice the best interests of the government if the individual were to remain in the military service. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to change his undesirable discharge to a medical discharge has been carefully examined 2. There is insufficient evidence in his records which shows he was physically or mentally unfit at the time of his discharge. A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating. In the applicant's case, although his mental health evaluation was not present in his records, his separation physical was available and clearly shows he was examined and found qualified for discharge. 3. His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. 4. The applicant's record of service shows he was repeatedly AWOL from his organization. Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory. 5. The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. 6. Notwithstanding the applicant’s contentions, his records are devoid of any evidence and he did not provide sufficient evidence which would corroborate any of the claims mentioned in his application to the Board. 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 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. ABCMR Record of Proceedings (cont) AR20150003807 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003807 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1