MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 24 SEPTEMBER 2002
         DOCKET NUMBER: AR2002076672


         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		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 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.

         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 under other than honorable conditions discharge be upgraded to an honorable discharge or he be medically retired or separated. The applicant states, in effect, that he had a "disease" when he was drafted. He submits no evidence in support of his request and the "disease" he alleges he had is unreadable on his application.

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:

He was inducted and entered active duty on 16 May 1968. At the time of his induction he was 19 years old, had 11 years of formal education, and had a GT (general technical) score of 93. His induction medical examination notes that he had a hearing impairment, which was not medically disqualifying. He was found medically qualified for induction and entered active duty with a permanent profile (P-2) for his hearing.

Prior to reporting for training at Fort Dix, New Jersey, the applicant was reported as AWOL (absent without leave). By January 1969, the applicant was in the Correctional Holding Detachment at Fort Polk, Louisiana and had accumulated four periods of AWOL totaling more than 130 days, been convicted by a special court-martial for AWOL, been punished twice under Article 15 of the UCMJ (Uniform Code of Military Justice), and had been convicted by a civil court for issuing bad checks. He had not completed any training.

His unit commander initiated action to administratively separate the applicant for unfitness under the provisions of Army Regulation 635-212. In his separation physical examination, the applicant noted that he was in "fair to good" health and that he suffered from "nervousness." The examining physician found him medically qualified for separation. A mental hygiene consultation, conducted as a part of the Fort Polk "Mental Hygiene Stockade Program" found that the applicant had a "severe character and behavior disorder" and that unless his "motivation to return to duty and perform effectively can be changed by [the] end of his disciplinary requirements, he should be eliminated from the service." The evaluating physician noted that the applicant had an "emotional instability reaction…manifested by rapidly and continuously fluctuating emotional attitudes…and almost no motivation whatsoever to serve in the military." He noted that the applicant was "at the time, so far free from mental defect, disease, or derangement as to be able, concerning the particular act charged, both to distinguish right from wrong and to adhere to the right." The evaluating physician found the applicant mentally responsible.
The applicant acknowledged receipt of the proposed separation action, consulted with counsel, and waived his attendant rights. He also acknowledged that he understood that if he received an undesirable discharge he might be ineligible for many or all benefits as a veteran and could expect to encounter substantial prejudice in civilian life.

The commander's recommendation was approved, and on 29 January 1969 the applicant was discharged. He was issued an undesirable discharge certificate and his service was characterized as under other than honorable conditions. At the time of his separation he had 2 months and 17 days of creditable service and more than 200 days of lost time due to AWOL and confinement.

Army Regulation 635-212, then in effect, provided for the administrative separation soldiers for unsuitability and unfitness. Soldiers discharged for unsuitability generally exhibited inaptitude, character and behavior disorders and apathy, among other things. Soldiers discharged for unsuitability were furnished an honorable or general discharged as appropriate based on his or her overall military record. Soldiers discharged for unfitness were, among other things, frequently involved in incidents of a discreditable nature with civil or military authorities, and an established pattern showing dishonorable failure to pay just debts. Soldiers discharged for unfitness received undesirable discharges.

Army Regulation 635-40 provides for the medical separation or retirement of soldiers, with entitlement to separation or retirement benefits (monetary payments) only when an individuals unfitting condition was incurred during, or aggravated by, his military service. Individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service may be separated without entitlement to benefits.

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.

There is no evidence, and the applicant has not provided any, that he suffered from any disqualifying medical condition which would have precluded his induction into the Army or which would have served as a basis to excuse his multiple incidents of misconduct. As such, there is no basis to medically retire or separate the applicant by reason of physical disability. Additionally, while the applicant may have been diagnosed with a personality disorder, and as such subjected to separation for unsuitability, the Board notes that his frequent incidents of misconduct were such that separation for unfitness was appropriate. This is particularly true in light of the fact that the evaluating physician noted that the applicant was able to distinguish right from wrong and to adhere to the right. His undesirable discharge and characterization of his service was appropriate and he has presented no evidence which would serve as a basis to upgrade or change the reason for his discharge.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 January 1969, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 29 January 1972.

The application is dated 2 July 2002 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. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__AAO__ __KWL __ __DPH__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002076672
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020924
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.