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ARMY | BCMR | CY1997 | 9711195
Original file (9711195.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his general discharge be upgraded to an honorable discharge.

APPLICANT STATES: That he was recently diagnosed with post-traumatic stress disorder. Also, he was wounded in action. He attaches VA compensation paperwork as supporting documentation.

 COUNSEL CONTENDS : Disabled American Veterans, Topeka, KS office requests that his discharge be upgraded.

 EVIDENCE OF RECORD : The applicant’s military records show:

He initially enlisted in the U.S. Marine Corps on 17 October 1967. He served in Vietnam from January - September 1969. He was honorably discharged from the Marine Corps on 23 October 1969. He enlisted in the Regular Army on 20 April 1971.

The applicant received numerous counseling statements for infractions such as indebtedness, being dismissed from the Leadership School for being AWOL, mischief, being late to work, breaking restriction, insubordination, and below-standard performance.

On 18 April 1972, the applicant completed a separation physical and was found qualified for separation.

On 23 April 1972, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 14 - 22 March 1972. He was sentenced to be reduced to pay grade E-3, to forfeit $50 pay for 1 month and to 30 days restriction.

On 9 May 1972, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for failure to go to his appointed place of duty.

The applicant underwent a mental status evaluation and was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right and mentally capable of understanding and participating in any board proceedings.

On 19 May 1972, the commander initiated separation proceedings under the provisions of Army Regulation 635-212 for unsuitability.

On 24 May 1972, the applicant acknowledged notification of the separation action. He waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel and elected not to submit any statements in his own behalf.

On 14 June 1972, the appropriate commander approved the recommendation and directed the applicant be issued a General Discharge Certificate.

On 26 June 1972, the applicant was discharged, with a general discharge, in pay grade E-3, under the provisions of Army Regulation 635-212. He had completed a total of 3 years, 2 months and 10 days of creditable active service and had 10 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unsuitability.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. In pertinent part it states that, when a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit. The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.
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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify any separation action it has taken.

4. While there is some evidence in the applicant’s VA records to show he may be eligible for the Purple Heart, it was for a period of time when he was in the Marine Corps. This would be an issue for the Board for Correction of Naval Records to address.

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
                                                      

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