APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.  He states that his discharge for character and behavior disorders was improper-he should have been discharged for apathy, which required specific due process steps.  He states that the medical evaluation was improperly completed, that personnel in his chain of command were aware that to separate him for unfitness would require due process protection and approval by the General Court-Martial Convening Authority, and that he should have received a medical discharge.  He states that he is currently pursuing a disability claim with the VA for post traumatic stress disorder (PTSD), basing his claim on incidents that occurred while he was on active duty.  He states that he is entitled to have his discharge upgraded to honorable and that he receive 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 22 April 1965, completed training at Fort Gordon, Georgia, and in October 1965 was assigned to an infantry unit in Germany. 

A 29 March 1966 clinical record indicates that the applicant cut both his wrists superficially with a razor blade on 
23 March 1966.  He was diagnosed as having a situational adjustment reaction, manifested by anxiety, depression, and suicidal gesture.  He was returned to duty.

A 11 October 1966 medical report shows that the applicant was admitted to the emergency room of the 30th Field Hospital because he ingested 25 tablets in a suicide attempt.  He was evaluated as being highly intelligent, but a grossly immature manipulator with a long history of behavioral instability, and diagnosed as passive aggressive reaction, manifested by pouting, passive obstructionism, inefficiency, and suicidal gestures.  He was discharged to his unit with a recommendation for administrative separation.  
On 19 December 1966 the applicant’s commanding officer recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-212 because of his lack of appropriate interest and his inability to adjust to military life.  That official stated that the applicant had been assigned to two different companies in the battalion under different supervisors, and in each instance had shown a lack of interest in the performance in his job. His military superiors and a psychiatrist have agreed that further rehabilitative efforts would be useless.  His commanding officer stated that the applicant had been counseled on four occasions.  That official stated that elimination for unfitness is not considered appropriate.

On 29 December 1966 the applicant consulted with counsel, stated that he had been advised of the basis for the contemplated action to separate him for unsuitability, waived consideration by a board of officers, and declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the general discharge that he might receive. 

A certificate by the applicant’s former commander indicates that the applicant had been transferred to a hospital unit for rehabilitative reasons, that it was reported that he had attempted suicide by taking an overdose of pills, and that he was returned to his previous unit, where he continued to show no interest in his assignment.  That official stated that the applicant was beyond hope of rehabilitation, that repeated efforts to help him were fruitless, and that he appeared to live in another world.

A statement from the commanding officer of the hospital unit to which the applicant was attached indicates that the applicant displayed evidence of instability and the lack of ability to cope with military life, that the applicant showed a candid disregard for military discipline and regulations, and that further rehabilitative measures were useless.

The applicant’s first sergeant, in a sworn statement, indicated that the applicant’s behavior was that of a spoiled child, that his intelligence was completely overshadowed by his temper tantrums and un-military bearing.

Another NCO stated that the applicant impressed him as being unstable, and that he had previous knowledge of three efforts by the applicant to commit suicide.  He stated that the applicant failed to maintain a military bearing, and that he frequently succumbed to childish tantrums.  That NCO stated that the applicant should be eliminated from the Army.

A report of medical examination of 20 December 1966 indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history that the applicant furnished for the examination, he stated that his health was fine.  That report indicated that he had attempted suicide, had terrifying nightmares after this attempt, and was hospitalized after the suicide attempt.

On 9 January 1967 the separation authority approved the recommendation and directed that the applicant be discharged for apathy, and that a General Discharge Certificate be issued.

On 10 January 1967 the discharge action was returned to the separation authority with a recommendation that the applicant be discharged for character and behavior disorders, because of the diagnosis of the psychiatrist.

On 11 January 1967 the separation authority approved the recommendation for discharge for character and behavior disorders.  He directed that a General Discharge Certificate be issued.

The applicant was discharged on 8 February 1967 at Fort Dix, New Jersey, under honorable conditions, under the provisions of Army Regulation 635-212.  He had 1 year, 9 months, and 
17 days of service.

On 17 May 1993 the VA denied the applicant’s claim for service-connection disability for seizure disorder with amnesia, PTSD, personality disorder, and acute situational reaction, among other claims.

In a 9 December 1993 statement from a VA medical doctor, that official stated that the applicant stated that he was emotionally distressed, that he was constantly scared during basic training, that he had a seizure during flight training, and that he was put in a cell on the floor for two weeks.  The applicant stated to this doctor that he was raped while in Germany, that he cut his wrists in 1966, and that he was sexually assaulted again in 1967.  He related other disturbing incidents and stated that he only realized that he was homosexual after returning to the United States from Germany.  That doctor stated that in his opinion, the applicant’s psychiatric problems were service-connected.

On 12 April 1994 the VA again denied service connection for PTSD.

Army Regulation 635-212, then in effect, set forth the
policy and procedures for the administrative separation
of enlisted personnel for unfitness and unsuitability. 
It provided, in pertinent part, for the discharge due to
unsuitability of those individuals with character and
behavior disorders and disorders of intelligence as
determined by medical authority.  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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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.

In the processing of this case an advisory opinion was obtained from the Medical Advisor to the DA Military Review Boards Agency (COPY ATTACHED).  That official opined that a review of the applicant’s medical records revealed nothing to substantiate a medical discharge.

The legal advisor to the DA Military Review Boards Agency, in an informal opinion, has no objection to the determination made herein.  This case is legally sufficient.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
8 February 1967, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 8 February 1970.

The application is dated 25 January 1996 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