Title: APPLICANT REQUESTS: Reconsideration of his previous request to correct his records by upgrading his undesirable discharge to general under honorable conditions
Author: WoodsHN

ABCMR Memorandum of                                                                AC86-04967A
Consideration (cont)

APPLICANT REQUESTS:  Reconsideration of his previous request to correct his records by upgrading his undesirable discharge to general under honorable conditions.

APPLICANT STATES:  In effect, that he tried to serve and couldn’t because of his disability and that he is receiving social security benefits for the very same disability; paranoid schizophrenia.  That the undesirable discharge was wrong and in error.

COUNSEL CONTENDS: Counsel concurs in the applicant's presentation and contends that mitigating factors should be considered in order to grant a less harsher discharge.`

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 9 November 1988 (COPY ATTACHED)

The applicant submits four  letters in support of his contention that his condition was misdiagnosed by the Army and that his condition existed at the time of his discharge.

One letter from a childhood friend describes how shocked he was to see the applicant in 1976 with his hair shaved off, his teeth knocked out and acting delusional.  Three letters from the staff of, Volunteers of America, mental health services in Florida describe the applicants behavior and symptoms associated with schizophrenia over the past several years and the belief that his military service aggravated his condition.  All four letters conclude the applicant should receive an upgraded discharge.

It was concluded in an advisory opinion obtained from the ARBA medical advisor that a review of evidence submitted by the applicant did not alter the previous decision of discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of an established pattern of shirking.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

Army Regulation 635-40, paragraph 2-2b, as amended, 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 by 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.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

3.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the original Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director