RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070010181 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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 DD Form 214 (Certificate of Release or Discharge) for the period ending 26 July 1982 be corrected to show his date of birth as 27 January 1949; to show he was medically retired with a disability rating of 100 percent; and to add unspecified awards and military education courses.

2.  The applicant states that his DD Form 214 for the period ending 26 July 1982 was signed in ink and carbon, but “they” inked in items 23 through 29 after item   30 was signed.

3.  The applicant provides two copies of his DD Form 214 for the period ending 26 July 1982 – one is copy number 4 and the other appears to be copy number 2; a letter, dated 11 June 2007, from the National Personnel Records Center; and a Narrative Summary, dated 20 August 1981.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 27 January 1949.  After having had prior service in the U. S. Marine Corps, during which time he served in Vietnam, the applicant enlisted in the Regular Army on 1 June 1976.  There is no evidence to show a medical waiver was needed for his enlistment.  He completed training and was awarded military occupational specialty (MOS) 31M (Multichannel Communications Equipment Operator).  

3.  The applicant was honorably discharged on 24 March 1980 and immediately reenlisted on 25 March 1980.  

4.  On 10 December 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty (the motor park).  
5.  On 11 May 1981, the applicant was trained in and reclassified into MOS 64C (Motor Transport Operator) at Fort Leonard Wood, MO, after which he was assigned to Fort Hood, TX.

6.  The applicant provided a Narrative Summary that showed he underwent an excision of an exostosis (a benign bony growth projecting outward from the surface of a bone) in his right tibia on 21 August 1981.  On this document, the applicant underlined the entries, “Previous operation on the right hand.  Past injuries reveal fragment wounds to the right thigh and chronic low back pain” and indicated he received those injuries while in the U. S. Marine Corps in Vietnam.  The document indicated the applicant tolerated the procedure well, was ambulating on the ward with crutches with full weight bearing, and he was ready for discharge.  He was discharged with no medications, diet as tolerated, ambulation with assistance of crutches, and 3 weeks convalescent leave.

7.  On 1 October 1981, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty (physical training formation) and for disobeying a lawful order from a noncommissioned officer (to attend remedial physical training).  

8.  On 6 October 1981, the applicant requested reclassification because the physical limitations he had due to an operation on his right knee rendered him unable to drive a vehicle safely.  

9.  On 9 November 1981, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from a noncommissioned officer (to get three trucks ready for dispatch) and for three specifications of failing to go to his appointed place of duty (headcount at the dining facility, company charge of quarters, and physical training formation).  

10.  On 17 November 1981, the applicant underwent a psychiatric evaluation.  The Chief, Psychology Service noted the applicant was experiencing significant impairment in emotional and occupational functioning due to adjustment difficulties in his current unit which were complicated by his leg surgery and by a delayed post-traumatic stress disorder secondary to Vietnam combat experiences.  He was psychiatrically cleared for a chapter 13 discharge with follow-up by the Veterans Administration (VA).  A follow-up was also recommended on a report by the applicant that he was granted disability payments by the VA for a mental disorder.

11.  On 16 June 1982, the applicant’s company commander initiated separation action under Army Regulation 635-200, chapter 13, due to unsuitability as evidenced by apathy and defective attitude.  The commander cited the applicant’s inability to expend his efforts constructively, his inability to assume financial responsibilities, and his substandard personal habits.  He was advised by counsel of the basis for the contemplated separation action.  He waived consideration of his case by a board of officers; waived personal appearance before a board of officers; and waived representation by counsel.  He indicated that a statement was submitted; however, no statement is available. 

12.  On 16 July 1982, the appropriate authority approved the recommendation and directed issuance of a General Discharge Certificate.  

13.  On 26 July 1982, the applicant was discharged with a discharge under honorable conditions under the provisions of Army Regulation 635-200, paragraph 13-4C, for unsuitability – apathy, defective attitude, or inability to expend effort constructively.

14.  Item 5 (Date of Birth) of the applicant’s DD Form 214 for the period ending 26 July 1982 shows his date of birth as “490127” (i.e., 27 January 1949).

15.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 for the period ending    26 July 1982 shows the Army Service Ribbon, the National Defense Service Medal, the Overseas Service Ribbon, the (Army) Good Conduct Medal, the U. S. Marine Corps Good Conduct Medal, the Republic of Vietnam Campaign Medal; the Vietnam Service Medal with one bronze service star, and the Republic of Vietnam Cross of Gallantry with Palm Unit Citation.

16.  Item 14 (Military Education) of the applicant’s DD Form 214 for the period ending 26 July 1982 shows the Multichannel Communication Equipment Operator Course (1976), the Italian Conversation Course (1977), the Motor Transport Operator Course (1981), and the Military Airlift Command Airlift Planners Course (1980).

17.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

18.  The applicant’s DA Form 2-1 shows he completed the Multichannel Communication Equipment Operator Course and the Italian Conversation Course.  It also shows he completed three additional courses while he was in the U. S. Marine Corps.


19.  The applicant provided two copies of his DD Form 214 for the period   ending 26 July 1982.  One is copy number 4 and the other appears to be copy number 2.  Item 23 (Type of Separation), item 24 (Character of Service), item   25 (Separation Authority), item 26 (Separation Code), item 27 (Reenlistment Code), item 28 (Narrative Reason for Separation), and item 29 (Dates of Time Lost During this Period) on both of these DD Forms 214 contain the same entries:

     Item 23 – “Discharge”
     Item 24 – “Under Honorable Conditions”
     Item 25 – “Para 13-4C AR 635-200
     Item 26 – “JMJ”
     Item 27 – RE-3, 3C”
     Item 28 – “Unsuitability-apathy, defective attitude or inability to expend effort constructively” and
     Item 29 – contains the entry “None” on the copy that appears to be copy number 2; however, the entry in this item on copy number 4 is obliterated.

20.  Army Regulation 635-200, chapter 13 of the version in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability.  It provided that members were subject to separation for unsuitability for inaptitude, personality disorder, and apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively).  A general under honorable conditions characterization of service was normally appropriate.

21.  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.  In pertinent part, it states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

22.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The instructions for completing item 14 are to list in-service training courses successfully completed during the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 214 for the period ending 26 July 1982 already shows his date of birth as 27 January 1949.

2.  The applicant requested that his records be corrected to show he was medically retired with a disability rating of 100 percent.  

3.  It is acknowledged that in October 1981 the applicant requested reclassification because the physical limitations he had due to an operation on his right knee rendered him unable to drive a vehicle safely.  The operation, in August 1981, was undertaken to excise an exostosis in his right tibia.  However, the Narrative Summary he provided indicated he tolerated the procedure well, was ambulating on the ward with crutches with full weight bearing, and he was discharged with no medications, diet as tolerated, ambulation with assistance of crutches, and 3 weeks convalescent leave.  There is no evidence to show he required any further treatment for his leg or that he could not fully perform his duties.  Further, the applicant did not indicate on the request for reclassification that any mental condition prevented him from performing his duties as a 64C.  Therefore, there is insufficient evidence to show he required physical disability processing or that he should have been medically retired.

4.  The applicant requested that unspecified awards be added to his DD Form 214 for the period ending 26 July 1982.  His DA Form 2-1 shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar and these awards should be added.  There is no evidence of record to show that he was eligible for any other awards.  If the applicant believes he is eligible for any awards from his service with the U. S. Marine Corps, he must apply to the Board for Correction of Naval Records.

5.  The applicant requested that unspecified military education courses be added to his DD Form 214 for the period ending 26 July 1982.  His DA Form 2-1 does not show that he completed any courses while in the Army other than the ones already listed on his DD Form 214.  If the applicant is referring to the courses he completed while in the U. S. Marine Corps, the guidance for completing the DD Form 214 was to list only those in-service courses completed during the period covered by the DD Form 214.  Therefore, there is insufficient evidence to warrant adding any additional military education courses to his DD Form 214 for the period ending 26 July 1982.

6.  The applicant contended that his DD Form 214 for the period ending 26 July 1982 was signed in ink and carbon, but “they” inked in items 23 through 29 after item 30 was signed.  The entries on both of the copies of the DD Form 214 that he provided contain the same entries, and they both appear to have been typed in carbon.  The entries on copy number 4 appear to be slightly blurrier; however, that would be a normal occurrence since the typewriter keys were hitting copy number 4 after passing through three sheets of originals with carbon paper in between.  There is insufficient evidence to show that there were any irregularities in completing this DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__cd___  __cad___  __rdg___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar to his DD Form 214 for the period ending 26 July 1982.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his separation to a medical retirement or adding additional military education courses to his DD Form 214 for the period ending 26 July 1982.




__Carmen Duncan_______
          CHAIRPERSON




INDEX

CASE ID
AR20070010181
SUFFIX

RECON

DATE BOARDED
20071030
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.00
2.
110.04
3.
100.00
4.

5.

6.