RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20080000515 


	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.


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	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 discharge be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant defers to his father who states, in effect, that he is helping his son, the former service member (FSM) with his application because the FSM is not capable of doing it himself.  He claims his son's ability to serve was impaired by his life-long problem with processing verbal information, which causes him to become confused and sometimes requires clarification that others do not need.  He states that he is a Psychologist and he and the FSM's mother have always been concerned about this problem.  He states that he was a little surprised when his son was accepted in the Army National Guard (ARNG) and was concerned when he was permitted to go on active duty.  He claims that life has been a struggle for his son since he left the Army.  The FSM has since been diagnosed with an Organic Mental Disorder and Anxiety Related Disorders, and is now receiving a Social Security disability benefit based on these conditions.  He further states that he believes there was an administrative error in the FSM's separation papers because his son had been told emphatically that he was going to be discharged under honorable conditions.  He states that his son claims to have been rushed through the process.  He finally indicates the applicant should never have been accepted in the ARNG based on his medical problems, which included poor vision.  He concludes by stating that he is asking that the FSM's case be considered based on the fact it was not known that he suffered from an Organic Brain Disorder and based on the inconsistency in his separation documents.  

3.  The applicant provides a self-authored letter and medical documents from the FSM's Social Security Administration file.  

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 FSM's military records have been requested from the repository in St. Louis, Missouri, several times without success.  However, it has been determined that the applicant's active duty separation document (DD Form 214) and ARNG Report of Separation and Record of Service (NGB Form 22) were sufficient for the Board to conduct a fair and impartial review of this case. 

3.  The FSM's NGB Form 22 shows he enlisted in the Pennsylvania ARNG on 
28 November 1979.  It further shows that he served in the ARNG for a total of
1 year and 22 days, and he was discharged under honorable conditions and issued a GD Certificate on 19 December 1980.  

4.  The FSM's DD Form 214 shows he entered active duty on 2 March 1980, and served for 9 months and 18 days until being discharged under the provisions of Paragraph 13-4a(2), Army Regulation 635-200, by reason of Unsuitability (Inaptitude), on 19 December 1980.  Item 24 (Character of Service) shows he received a characterization of service of Under Other Than Honorable Conditions (UOTHC).  

5.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality.  Separation under these provisions was required when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance (inaptitude) under this regulation was characterized as either honorable or under honorable conditions, an UOTHC characterization of service was not authorized.  

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances surrounding the FSM's separation from active duty are not on file.  However, the DD Form 214 provided confirms the FSM was separated under the provisions of Paragraph 13-4a(2), Army Regulation
635-200.  The regulation in effect at the time required that members separated under this provision of the regulation receive either an honorable or under honorable conditions characterization of service.  An UOTHC characterization of service was not authorized.  Therefore, it appears clear the UOTHC characterization of service entered in Item 24 of the FSM's DD Form 214 was an administrative error that should be corrected at this time.  As a result, it would be appropriate to amend the FSM's DD Form 214 accordingly.  

2.  The FSM's NGB Form 22 correctly shows his characterization of service as under honorable conditions in Item 8d (Character of Service) and confirms the FSM received a GD Certificate (NGB Form 56) in Item 8e (Type of Certificate Used).  As a result, no correction of this document is necessary.  

3.  The applicant is advised that given the absence of the entire military record, no judgment was made regarding the FSM's physical qualifications at the time of his enlistment or at the time of his discharge.  This case was resolved solely using the separation documents provided based on the regulatory administrative requirements regarding characterization of service in effect at the time.  

BOARD VOTE:

___x_  __x__  __x    GRANT RELIEF 
________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 24 of the FSM's 19 December 1980 DD Form 214 by deleting the current entry and replacing it with the entry "Under Honorable Conditions"; and by providing him a corrected separation document that reflects this change.




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          		CHAIRPERSON