APPLICANT REQUESTS:  That his general discharge be upgraded to honorable.  He states that he had sustained an injury to the back of his neck during his childhood, resulting in pain that stayed with him during his high school years and continued during his military service.  When he was inducted into the Army, he reported this pain, but the Army chose to deliberately ignore it.  While at the Fort Dix, New Jersey reception station he went to the dispensary several times for medication.  He was unused to the numerous ethnic groups he encountered during basic training and noticed that there was a lot of stress between the groups.  Drugs were prevalent, and he was threatened and intimidated numerous times to ensure he would not report this illicit behavior.  He felt threatened because of the drugs and alcohol, intimidation, and anti-war propaganda.  He was on medication because of the pain in his neck, and he was getting no sleep because of his fear of retaliation.

The applicant further states that he was separated from the rest of the company, and then he was verbally and physically abused by drill instructors and the first sergeant.  He was constantly intimidated and harassed.  They decided to recycle him, however, prior to that action taking place, he continued to be abused.  He was admitted to the hospital and pumped up with medication; put in a room with a medical officer, who did nothing but scream at him.  He tried to tell them he was in a lot of pain, but his exhortations fell on deaf ears.  The medication they gave him did not help.

After he left the hospital he was told he had to talk to a lawyer, which he did, signing papers to get out of the Army. He believes that he signed these papers while under the influence of medication and that he was under a lot of psychological and physical duress.  He feels that the Army rushed the paperwork through in order to avoid responsibility for injustices.  He states that his rights have been violated.    


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:

A 9 September 1970 letter from a medical doctor to the local board of the selective service system indicates that the applicant had been examined and that he had a history of injury to the back of his neck, that he had recurrent attacks of lameness, pain and stiffness of the neck since then.  The doctor opined that the applicant had a chronic internal derangement of the low cervical spine.

The applicant was inducted into the Army on 
19 November 1970.  A 11 August 1970 report of medical examination indicates that applicant’s history of neck injury was noted and an x-ray taken.  The applicant was medically qualified for induction 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 fair.

The applicant was assigned to Fort Dix for basic training.  Clinical records show that he complained of problems with his neck on numerous times and that he received a temporary profile for a chronic cervical strain on 3 December 1970.

The applicant was admitted to the hospital at Fort Dix and diagnosed as having an inadequate personality.  A 
7 January 1971 psychiatric examination indicates that the applicant was to be recycled on that date, and allegedly had a temper tantrum, stating that everyone was against him and that no one understood him.  He cried and was breathing rapidly.  The examining psychiatrist diagnosed the applicant as having an emotionally unstable personality, chronic, moderate, manifested by negativism, extremely low stress and frustration tolerance, impulsivity, immaturity, moderate 
manipulativeness, obstructionism, and passive-aggressive behavior.  He was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. There were no medical defects that warranted disposition through medical channels.  The applicant was psychiatrically cleared for any administrative action deemed appropriate.  The examining psychiatrist opined that the applicant’s character and behavior disorder was so ingrained that rehabilitative efforts were not likely to succeed.

A 25 January 1971 report of medical examination indicates that the applicant 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 he was in fair health. 

On 3 February 1971 the applicant’s commanding officer initiated action to separate the applicant under the provisions of Army Regulation 635-212 for unsuitability.  The applicant consulted with counsel, waived consideration of his case 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.

The applicant’s commanding officer recommended to the separation authority that the applicant be eliminated from the Army and that he be furnished a General Discharge Certificate.  That official indicated that the applicant had been counseled on six separate occasions, that the applicant had been a consistent problem since his assignment to the unit and that he continuously shirked his duties.

On 17 February 1971 the separation authority approved the recommendation.  The applicant was discharged on 
23 February 1971.  He had 3 months and 5 days of service. 


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.
 
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 
23 February 1971, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 February 1974.

The application is dated 15 September 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