MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

        

         BOARD DATE: 8 January 2002
         DOCKET NUMBER: AR2001062717

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Roger W. Able		Member
Mr. Terry L. Placek		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. 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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his records be corrected to show his discharge was based on a physical disability not unsuitability.

APPLICANT STATES: The applicant insists he was born bipolar and the Army never checked prior to his induction. The applicant further indicates that his Department of Veterans Affairs (VA) records will serve as evidence in favor of his request, however, they were not submitted as evidence.

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

On 31 January 1970, the applicant enlisted in the Army for 3 years. His Entrance Physical Examination was not in the available records. He completed his required training and was awarded military occupational specialty 13A (Field Artillery Basic).

During the period 20 July to 19 November 1970, he served in Germany.

On 15 October 1970, a Report of Psychiatric Evaluation indicated a diagnosis of “Immature Personality” and indicated there was no potential for rehabilitation through military channels. He was cleared for any administrative action deemed appropriate. His Separation Physical Examination was not in the available records.

On 15 October 1970, the unit commander recommended the applicant appear before a board of officers to determine if he should be discharged prior to the expiration of his term of service because of his habits and traits of character manifested by repeated commission of petty offenses and inability to adapt to military life. The commander further indicated that the applicant had shown a marked disinterest in his work; was constantly absent from formations and his place of duty; was reluctant to work when he could be found; and his attitude toward military service was contemptuous. In addition, any attempt to communicate understanding with the applicant met with negative results. The commander further indicated that the applicant’s resentment, disrespect, and hatred he exhibited toward his superiors and anyone in authority prohibits him from making any possible contribution to the Army. The commander recommended elimination under Army Regulation 635-212, for unsuitability. During the period 3 August through 13 October 1970, the applicant was formally counseled on 18 occasions by members of his chain of command.

The applicant, with legal counsel, waived consideration of and personal appearance before a board of officers. He elected not to submit statements in his own behalf and waived legal counsel. He further indicated he understood that, as the result of issuance of a general discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.
On 17 October 1970, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for (1) his failure to go to his appointed place of duty on 25 September, 14 & 15 October 1970; (2) his disobeying a lawful order on 24 September 1970; and (3) absenting himself from his unit on 16 October 1970. His punishment included a reduction to pay grade E-2, forfeiture of $30 pay per month and extra duty for 14 days. The applicant appealed the punishment.

On 27 October 1970, the applicant’s battalion commander, acting on the appeal, indicated that the offense for which he was charged was extremely serious and punishable under the UCMJ. A separation under Army Regulation 635-212 does not excuse an individual from extra duty or manual duty.

On 5 November 1970, the appropriate separation authority approved the request for discharge under the above-cited regulation for unsuitability and directed the applicant be issued a general discharge.

On 20 November 1970, the applicant was discharged under the above-cited regulation and issued a General Discharge Certificate. His separation documents indicates he had 9 months and 20 days of creditable service.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7, provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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 the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2. The applicant has not provided any positive medical evidence that he was not properly evaluated or rated at the time of his discharge.

3. 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 this requirement and, in the absence of evidence to the contrary, it is presumed that her discharge was conducted in accordance with law and regulations applicable at the time.

4. 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

_tlp____ _rwa____ _lls____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001062717
SUFFIX
RECON
DATE BOARDED	20020108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108
2.
3.
4.
5.
6.