RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 25 November 2003
         DOCKET NUMBER: AR2003090771


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

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

---

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his general under honorable conditions discharge be changed to a service connected medical discharge.

2. The applicant states that he had a back injury in Korea.

3. The applicant provides an audio cassette tape; seven Reports of Medical History; one Report of Medical Examination; two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter from the Department of Veterans Affairs, Cleveland, Ohio; two Dental Health Records; a copy of his DA Form 20 (Enlisted Qualification Record); his initial enlistment contract dated 15 August 1960; a Report of Proceedings of USAARMC Clemency Board; a DA Form 26 (Record of Court Martial Conviction); and his
DA Form 24 (Service Record).

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on 27 August 1963. The application submitted in this case is dated 7 May 2003.

2. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant entered active duty on 15 August 1960. He completed the required training and served in Korea as a rocket launcher crewman. He was promoted to the temporary grade of private first class on 20 April 1961.

4. The applicant underwent a medical examination on 29 June 1962 for the purpose of reenlistment. The examining physician indicated that the applicant was qualified for reenlistment with a physical profile of 111111. He was honorably discharged on 15 August 1962. He reenlisted on 16 August 1962 for a period of six years.

5. The applicant's personnel records contain an undated endorsement from the commanding officer of the 2nd Replacement Detachment, 2nd Infantry Division at Fort Benning, Georgia. In this endorsement, the commanding officer stated that the applicant was in an absent without leave (AWOL) status on 21 January 1963 and was apprehended by civil authorities on 19 February 1963. The applicant was released to military authorities and confined at Franklin County Jail in Portsmouth, Ohio on 26 February 1963. After being returned to Fort Benning, Georgia, the applicant was counseled regarding his reason for being AWOL. At this time, the applicant mentioned his back ailment but did not mention a desire to see a medical officer. The commander indicated that the applicant was informed of the documents needed for application for a medical discharge and was offered assistance to complete his application. The commander further indicated that the applicant was placed in an AWOL status again on 17 March 1963 and was dropped from the rolls as a deserter on 17 March 1963.

6. The applicant underwent a medical examination on 8 July 1963 in which the purpose for the examination is listed as "Medical Discharge." Under item 73 (Notes) of this document, the applicant indicated that his back was getting worse. He was given a physical profile of 211111.

7. The applicant underwent a psychiatric evaluation on 20 July 1963 which determined that he had no evidence of psychosis or severe depression and had no motivation for duty. He was diagnosed as having a passive–aggressive reaction. The applicant informed the psychiatrist that he went AWOL because of his sore back and because he felt unjustly treated. The psychiatric evaluation found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. The psychiatrist strongly recommended that the applicant be separated under the provisions of Army Regulation 635-209.

8. On 25 July 1963, the applicant was convicted by a special court-martial of being AWOL from 21 January 1963 to 26 February 1963 and from 17 March 1963 to 5 July 1963. He was sentenced to confinement at hard labor for six months, to a forfeiture of $43.00 pay per month for six months, and to a reduction to private E-1.

9. The applicant underwent a separation medical examination on 30 July 1963. The examining physician commented that the applicant had a back injury since 1960 with "occasional pains while on active duty." He was given a physical profile of 111111. At that time, he was found to be medically qualified for separation under the provisions of Army Regulation of 635-209.

10. On 5 August 1963, the applicant's unit commander recommended that he be separated from the service for unfitness under the provisions of Army Regulation 635-208 with an undesirable discharge. The commander cited the basis for his recommendation as the applicant's chronic AWOL pattern, disciplinary record and mental status.

11. On 8 August 1963, the Special Processing Facility, Fort Knox, Kentucky clemency board recommended that the applicant be separated from the service.

12. The applicant's election of his rights are not available; however, the intermediate commander's recommendation shows the applicant waived his right to a hearing before a board of officers.

13. On 16 August 1963, the separation authority accepted the waiver for a hearing before a board of officers and directed that the applicant be discharged under the provisions of Army Regulation 635-209, paragraph 3, because of unsuitability with issuance of a General Discharge Certificate. The applicant was discharged on 27 August 1963.

14. The applicant provided a 9 August 2002 letter from the Department of the Veterans Affairs (DVA), Cleveland, Ohio which states that he had been denied a service-connected disability rating on 31 December 1975 for his back injury because he did not supply evidence of his back condition. He was advised that he did not appeal the decision within one year and the decision was made final. The applicant was informed by DVA on five occasions to provide new and material evidence but he failed to do so.

15. Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

16. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

17. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity.

DISCUSSION AND CONCLUSIONS:

1. The medical documents submitted by the applicant indicate he contended he suffered from back pain. However, the evidence of record shows that prior to the applicant's discharge in August 1963, competent medical authority determined that he was then medically qualified for separation with a physical profile of 111111. He provides no medical evidence to contradict this finding.

2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record.

3. Records show the applicant should have discovered the error or injustice now under consideration on 27 August 1963; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 August 1966. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

RVO_____ LEM_____ YM______ DENY APPLICATION

---

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  Raymond V. O'Connor___
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003090771
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031125
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19630827
DISCHARGE AUTHORITY	AR635-209
DISCHARGE REASON	Unsuitability character and behavior disorders
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.0000
2.
3.
4.
5.
6.