IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20080005077 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his administrative discharge be changed to a medical discharge.

2.  The applicant states that he is 100 percent disabled due to a mental/nervous condition and lung disease.  He was discharged without proper medical procedures (being followed).  

3.  In a letter, dated 20 February 2008 and addressed to the Army Discharge Review Board (ADRB), the applicant stated that if the military doctors had looked into his records they would have known that he was on lockdown in the hospital in Korea for a mental illness caused by his service on the demilitarized zone (DMZ).  He stated he “fell into a well that night, Known as Human Waste, I went straight down to the bottom and some how I came back up and my Squad Leader grab my weapon, and pull me out, that night I sat on the top off the hill and the away from my fellow soldiers and the dark alone spelling like Sh--, it was until the next morning they sent be back to the rear, I lost it that night, and I having been right since, I broke out and scabs and what ever unknown disease,beside mental…” (spelling, punctuation, and grammar as in the original).

4.  The applicant provides the 20 February 2008 letter to the ADRB; a Department of Veterans Affairs (DVA) Rating Decision, dated 14 December 2002; a Certification of Military Service; a DD Form 214 (Certificate of Release
or Discharge from Active Duty) for the period ending 3 February 1982; and a   DD Form 215 (Correction to DD Form 214).

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 enlisted in the Regular Army on 12 July 1977.  He completed basic training and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant was assigned to the 2d Infantry Division in Korea from on or     about 19 November 1977 through on or about 13 November 1978.  

4.  On 22 January 1980, the applicant was honorably discharged for the purpose of immediate reenlistment and reenlisted on 23 January 1980.

5.  On or about 5 April 1980, the applicant was again assigned to the 2d Infantry Division in Korea.

6.  On 28 March 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by wrongfully transferring various duty-free goods of some value to persons not entitled to duty-free privileges.  His punishment was a reduction to E-4 and a forfeiture of $300.00 pay per month for 2 months.

7.  The applicant departed Korea on or about 4 April 1981 and was assigned to Fort Carson, CO.

8.  On 27 August 1981, the applicant accepted NJP under Article 15, UCMJ, for being derelict in the performance of his duties by failing to physically test individuals at the skill qualification test (SQT) station; willfully failing to take the SQT test; and wrongfully and without authority wearing upon his uniform the insignia of a Sergeant.  His punishment was a reduction to E-1, a forfeiture of $250.00 pay per month for 2 moths, restriction for 30 days, and extra duty for    30 days.
9.  On 3 December 1981, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave from on or about 24 November 1981 to on or about 30 November 1981.  His punishment was a forfeiture of $250.00 pay per month for 2 months, extra duty for 30 days (suspended), and restriction for
30 days (suspended).

10.  On 14 October 1981, the applicant completed a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and he was cleared psychiatrically for any administrative action deemed appropriate by his command. 

11.  On 12 November 1981, the applicant was notified of his commander’s intention to initiate action to discharge him under the provisions of Army Regulation 635-200, paragraph 13-4c for unsuitability – apathy.  

12.  On 1 December 1981, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him for unsuitability and its effects.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, waived consulting counsel, and did not submit a statement in his own behalf.

13.  On 11 December 1981, the appropriate authority waived the counseling and rehabilitation requirements and approved the recommendation to separate the applicant with a General Discharge Certificate.

14.  On 3 February 1982, the applicant was discharged, with a general under honorable conditions discharge, after completing a total of 4 years, 6 months,   and 22 days of creditable active service with 6 days of lost time.

15.  On 22 April 1996, the ADRB denied the applicant’s request for a discharge upgrade.  In his application to the ADRB, the applicant had contended that, in regard to the first Article 15, he was once married to a Korean.  It was not a crime to buy his wife (goods) with his money or card that was issued to him.  In regard to the second Article 15, he contended he must have been pretty stupid to falsify any documents and to allow himself to get an Article 15.  He was not guilty.  The charge of him wearing an improper grade insignia was false.  He was told by (the) personnel (office) that he was a Sergeant, so he continued to wear that rank.

16.  The applicant provided a DVA Rating Decision, dated 14 December 2002.  This document shows that his evaluation of schizophrenia, paranoid type, which was currently 70 percent disabling, was increased to 100 percent effective        23 August 2002.  His original DVA Rating Decision is not available.  This document noted that he had been employed as a letter carrier with the U. S. Postal Service since July 1986, that he had been terminated from that employment on 15 August 2002, and that he had been on leave without pay     for some time pending his termination.

17.  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.  The regulation requires that separation action will be taken, 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.  

18.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.  However, there is no evidence of record and the applicant provided no evidence to show he was hospitalized while in Korea for a mental illness.  In addition, he completed a mental status evaluation on 14 October 1981 and was cleared psychiatrically for any administrative action deemed appropriate by his command. 

2.  It is noted that the DVA awarded the applicant a 100 percent disability rating for schizophrenia, paranoid type, effective 23 August 2002.  His original DVA Rating Decision is not available; therefore, it cannot be determined when he was first diagnosed with that condition.  However, it is also noted that the DVA Rating Decision indicated the applicant had been employed with the U. S. Postal Service since July 1986.  It also indicated that he had been on leave without pay for some time pending his termination of that employment on 15 August 2002; however, the fact that it appears he was successfully employed with the U. S. Postal Service only four years after his discharge, and it appears he remained successfully employed for a number of years thereafter, indicates that he was not medically unfit for retention in the Army when he was discharged in 1982.

3.  Based on the above, there is insufficient evidence that would warrant granting the relief requested.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____xx__  ___xx___  ___xx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



________xxxxxx_________
      CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005077



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ABCMR Record of Proceedings (cont)                                         AR20080005077



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