Search Decisions

Decision Text

ARMY | BCMR | CY1995 | 9507088C070209
Original file (9507088C070209.TXT) Auto-classification: Denied
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 applicant’s 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 applicant’s 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 applicant’s 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 applicant’s claim for service connected disability for an inadequate personality disorder.  On 27 March 1996 the VA denied the applicant’s 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

Similar Decisions

  • ARMY | BCMR | CY2004 | 20040011431C070208

    Original file (20040011431C070208.doc) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant's father stated that the applicant was abandoned by his natural parents at age 10 months and he did not have the intelligence to understand the concept of responsibility. The available evidence indicates the applicant experienced problems completing his training requirements.

  • ARMY | BCMR | CY2008 | 20080013425

    Original file (20080013425.txt) Auto-classification: Denied

    The applicant requests that his honorable discharge of 12 January 1970 be changed to a medical discharge. A review of the available service medical records show the applicant was treated in September and October 1969 for a left ankle sprain. The DVA granted the applicant service connection for a left foot condition on the basis of his service medical record, but rated his disability as 0 percent disabling which indicates that he was not rendered unfit due to this condition.

  • ARMY | BCMR | CY2008 | 20080010001

    Original file (20080010001.txt) Auto-classification: Denied

    The applicant states that he was in the hospital for over two months while he was in the service with the same illness and disability for which he now receives a pension. There is no evidence in the available records which shows the applicant was diagnosed by competent military medical authorities with an unfitting medical condition prior to his discharge. There is no military evidence of record which indicates the applicant incurred any medical condition that rendered his medically unfit...

  • ARMY | BCMR | CY2006 | 20060017412

    Original file (20060017412.txt) Auto-classification: Approved

    RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2007 DOCKET NUMBER: AR20060017412 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. 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. As a result, the Board recommends that...

  • ARMY | BCMR | CY2009 | 20090001241

    Original file (20090001241.txt) Auto-classification: Denied

    COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. On 25 March 1970, while in Vietnam, the applicant was evaluated by a psychiatrist. Since there is insufficient evidence of record to show that the applicant's medical condition was medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical separation or retirement.

  • ARMY | BCMR | CY2014 | 20140008068

    Original file (20140008068.txt) Auto-classification: Approved

    However, the available records show that on 1 May 1970 the applicant’s commander advised the applicant that he was recommending that he be discharged under the provisions of Army Regulation 635-212 for unsuitability due to a character and behavior disorder. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. As a result, the Board recommends that all...

  • ARMY | BCMR | CY2004 | 04101078C070208

    Original file (04101078C070208.doc) Auto-classification: Denied

    RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 AUGUST 2004 DOCKET NUMBER: AR2004101078 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. 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. On 17 March 1970 the applicant's...

  • ARMY | BCMR | CY2013 | 20130005665

    Original file (20130005665.txt) Auto-classification: Approved

    On 20 May 1970, the applicant's immediate commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-212 by reason of unsuitability. The applicant was accordingly discharged on 25 May 1970. The evidence of record shows the applicant's quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

  • ARMY | BCMR | CY2009 | 20090020944

    Original file (20090020944.txt) Auto-classification: Denied

    The applicant requests that his general discharge be changed to a medical discharge. Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. There is no evidence in the applicant's record nor did the applicant submit any evidence showing he was being considered for a medical discharge from the military.

  • ARMY | BCMR | CY2002 | 2002076672C070215

    Original file (2002076672C070215.rtf) Auto-classification: Denied

    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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file. Soldiers discharged for unfitness received undesirable discharges. His undesirable discharge and characterization of his service was appropriate and he has...