IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080005529 


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 separation be changed to a medical separation.

2.  The applicant states that he was placed on psychiatric evaluation in December 1963, and a short time later he was discharged.  He was told he was apathetic.  After his discharge, he spent time in confinement and has been divorced.  He was very young at the time.  He feels they gave him a general discharge just to get rid of him.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and the back page of a Standard Form 88 (Report of Medical Examination).

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 6 March 1944.  He enlisted in the Regular Army  on 15 December 1961.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

3.  Between 22 April 1963 and 1 November 1963, the applicant accepted        non-judicial punishment under Article 15, Uniform Code of Military Justice on seven occasions for being absent without leave (AWOL) from 2 April through      9 April 1963; for failure to repair; for absenting himself from his appointed place of duty and failing to perform the extra duties assigned to him after he reported; for failing to go to his appointed place of duty and absenting himself without proper authority from his unit; for absenting himself from his unit; for absenting himself from his place of duty; and for absenting himself from his place of duty, respectively.

4.  On 20 June 1963, the applicant was convicted by a summary court-martial of showing disrespect to a noncommissioned officer and for being drunk and disorderly in quarters.

5.  On 15 July 1963 and on 5 August 1963 the applicant was seen by the Department of Psychiatry and Neurology Outpatient Clinic.  On 6 August 1963, a psychiatric social worker indicated that no evidence of psycho-social pathology of a nature to deter full duty or administrative action was found.  It was found that the applicant passive-aggressively forced authority to make his life’s decisions for him.  His problems of immaturity followed the pattern of doing well for extended periods, but when one mistake was made he then gave up and made numerous others.  

6.  On 22 November 1963, the applicant received a psychiatric evaluation.  The Medical Corps psychiatrist noted that no evidence of neurosis or psychosis was found, recommended administrative separation, and psychiatrically cleared the applicant for separation.

7.  On 9 December 1963, discharge proceedings under the provisions of Army Regulation 635-209 for unsuitability, character behavior disorder, were initiated.  The reason cited by the commander was the applicant’s character and behavior disorders characterized by a tendency to disregard the rules and regulations governing military personnel as evidenced by the punishments imposed on him during his tenure with the unit.
8.  On 9 December 1963, the applicant was advised of the basis for the recommended administrative elimination action.  He was afforded the opportunity to consult with counsel and declined.  He waived his rights to have his case heard by a board of officers.  He elected not to submit a statement in his own behalf.

9.  The applicant completed a separation physical and was found qualified for separation.

10.  On 13 December 1963, the appropriate authority approved the recommendation and directed the applicant receive a general discharge.

11.  On 9 January 1964, the applicant was discharged, in pay grade E-2, under the provisions of Army Regulation 635-209, unsuitability, character behavior disorder, with a general discharge.  He had completed 2 years and 17 days of creditable active service and had 8 days of lost time.

12.  Army Regulation 635-209 set forth the basic authority for the separation of enlisted personnel for unsuitability.  That regulation provided, in pertinent part, that a member with a character or behavior disorder, disorder of intelligence, or transient personality disorder due to acute or special stress and who was unlikely to develop sufficiently to participate in further military training and or become a satisfactory Soldier, would be discharged for unsuitability.

13.  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.  It states Medical Evaluation Boards are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  

14.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-31 of the version in effect at the time, stated 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.  It is acknowledged that the applicant was seen several times by the psychiatric department.  However, no evidence of neurosis or psychosis was found, he was diagnosed with a character and behavior disorder, and he was psychiatrically cleared for an administrative separation.  
2.  Army Regulation 40-501 provided that character and behavior disorders rendered an individual administratively unfit rather than unfit because of physical disability.  Therefore, there is insufficient evidence to show that the applicant was improperly separated administratively under the provisions of Army Regulation 635-209 rather than medically under the provisions of Army Regulation 635-40.

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.



	_________xxxx__________
      	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)                                         AR20080005529



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005529



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1