RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:          1 September 2005                    
	DOCKET NUMBER:  AR20050000980


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Stanley Kelley

Chairperson

Ms. Barbara Ellis

Member

Mr. Richard Dunbar

Member

	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, in effect, that his general discharge be changed to a medical discharge.

2.  The applicant states his discharge document should reflect that his reason for discharge was medical but it does not.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error which occurred on 24 October 1972.  The application submitted in this case is dated 28 December 2004.  

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 enlisted on 15 August 1972 for a period of 2 years.  While in basic combat training, on 6 September 1972, nonjudicial punishment was imposed against the applicant for using disrespectful language.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  While in basic combat training, on 20 September 1972, nonjudicial punishment was imposed against the applicant for communicating a threat to kill his platoon sergeant.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.  

5.  On 22 September 1972, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 for unsuitability. 

6.  On 22 September 1972, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  He based his recommendation for separation on the applicant's immature and unpredictable behavior and record of disciplinary actions.      
7.  There is no psychiatric evaluation contained in the available records.  However, the unit commander's recommendation, dated 22 September 1972, shows a psychiatric evaluation, dated 20 September 1972 was provided as an enclosure to his recommendation.

8.  On 29 September 1972, the applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

9.  On 27 October 1972, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
    
10.  Accordingly, the applicant was discharged on 24 October 1972 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  He had served 2 months and 10 days of total active service.     

11.  There is no evidence in the available records which shows the applicant was diagnosed with any mental or medical condition which rendered him unfit to perform his military duties prior to his discharge on 24 October 1972.

12.  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.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  This regulation provided for discharge due to unsuitability due to character and behavior disorders.  The regulation states that when separation for unsuitability was warranted an honorable or general discharge was issued as warranted by his military record.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

15.  Paragraph 3-31 of Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided that character and behavior disorders were considered to render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty would be dealt with through appropriate administrative channels.

DISCUSSION AND CONCLUSIONS:

1.  Records show that a psychiatric evaluation was submitted in the applicant's discharge packet and that he was discharged for unsuitability due to character and behavior disorders.  In the absence of evidence to the contrary, it is reasonable to presume that the applicant was diagnosed with a character and behavior disorder.  Since the governing regulation stated that character and behavior disorders were considered to render an individual administratively unfit rather than unfit because of physical disability, and there is no evidence of record to show the applicant was ever medically unfit to perform his duties, there is no basis for granting the applicant's request for a medical discharge. 

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 type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged error now under consideration on 24 October 1972; therefore, the time for the applicant to file a request for correction of any error expired on 23 October 1975.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

SK______  BE____  RD_______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



		__Stanley Kelley______
		        CHAIRPERSON





INDEX

CASE ID
AR20050000980
SUFFIX

RECON

DATE BOARDED
20050901
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19721024
DISCHARGE AUTHORITY
AR 635-212  
DISCHARGE REASON
Unsuitability due to character and behavior disorders
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.