APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation. He states that he should have received a medical discharge.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant was inducted into the Army on 26 February 1968, completed training and in July 1968 was assigned to an engineer unit in Germany.
On 5 February 1969 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL from
23 January until 3 February 1969.
On 19 March 1969 the applicants commanding officer recommended that the applicant be separated from the Army for unsuitability under the provisions of Army Regulation
635-212. That official stated that his recommendation was based on the applicants inefficiency due to low motivation, low intelligence, malingering, and failure to adjust to the military environment. He stated that the applicant had been transferred between job assignments for rehabilitative purposes and that his doctor and the officers and NCO who work with the applicant agree that further rehabilitative efforts would be useless. The applicant had been counseled on numerous occasions. A report of psychiatric evaluation indicates that the applicant had no motivation for remaining in the Army, that there was no evidence of a thinking disorder, that he was oriented, and that there was no evidence of psychosis or neurosis for which he could be medically discharged. The examining psychiatrist stated that the applicant had an inadequate personality and recommended that he be administratively separated under the provisions of Army Regulation 635-212.
The applicant consulted with counsel and stated that he understood the nature and consequences of the general discharge that he might receive. He elected not make a statement in his own behalf.
On 10 April 1969 the separation authority approved the recommendation and directed that the applicant receive a General Discharge Certificate.
A 17 April 1969 report of medical examination indicates that the applicant had an inadequate personality, but was medically qualified for discharge with a physical profile of 1 1 1 1 1 1. In the report of medical history the applicant furnished for the examination he stated that his health was good.
The applicant was discharged on 29 April 1969 at Fort Dix, New Jersey. He had 1 year, 1 month, and 29 days of service and 3 days of lost time.
On 14 November 1969 the VA denied the applicants claim for service connected disability for a nervous condition, stating that his personality disorder was congenital in nature.
On 11 February 1995 the VA denied the applicants claim for service connected disability for an inadequate personality disorder. On 27 March 1996 the VA denied the applicants claim for service connected disability for post traumatic stress disorder (PTSD).
Army Regulation 635-212, then in effect, set forth the
policy and procedures for administrative separation of
enlisted personnel for unfitness and unsuitability. It
provided, in pertinent part, for discharge due to
unsuitability because of apathy of those individuals who
displayed a lack of appropriate interest and/or an
inability to expend effort constructively. When
separation for unsuitability was warranted an honorable
or general discharge was issued as determined by the
separation authority based upon the individual's entire
record.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on
29 April 1969, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 29 April 1972.
The application is dated 5 March 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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