IN THE CASE OF:	  

		BOARD DATE:	  7 August 2008

		DOCKET NUMBER:  AR20080007477 


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, in effect, his honorable discharge by reason of unsuitability be changed to a medical discharge.

2.  The applicant states, in effect, he does not know why he did not receive a medical discharge.

3.  The applicant provides no additional evidence or official documentation in support of his application.

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's military personnel record shows he was inducted and entered active service on 6 May 1971.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

3.  On 24 May 1971, the applicant's commander notified him that he was being recommended for separation from the service for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability).  The commander advised the applicant of his right to present his case before a board of officers, submit any statement in his behalf, and to be represented by military counsel appointed by the convening authority, military counsel of his own choice, provided the requested counsel is reasonably available or civilian counsel at his own expense.

4.  On 24 May 1971, the applicant was evaluated by a captain of the Medical Corps at the Department of Hospital Clinics, U.S. Army Medical Department Activity, Fort Ord, California.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

5.  On 28 May 1971, the applicant received a psychiatric evaluation from a major of the Medical Corps, a psychiatrist.  The examiner diagnosed the applicant with an inadequate personality with anxiety features.  The examiner found the applicant had a history of marked social inadaptability prior to and during his tour in the military.  The examiner further found the applicant's condition to be a part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in the military service. 

6.  The examiner found no evidence of a mental disease, defect or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 40-501.  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

7.  On 14 June 1971, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.   
8.  On 22 June 1971, the applicant's commander recommended him for an honorable discharge for reasons of unsuitability under the provisions of Army Regulation 635-212.  The commander noted that the applicant's character and behavioral disorder was of such a degree as to render him untrainable by Army standards.  The commander further noted that the applicant had proven to be unresponsive to any form of punishment, retraining, or rehabilitation within the military setting.

9.  On 13 July 1971, the appropriate authority approved the recommendation for discharge by reason of character and behavior disorder and directed the applicant's service be characterized as honorable.

10.  The applicant's medical records were not available for review.

11.  On 29 July 1971, the applicant was discharged for unsuitability under the provisions of Army Regulation 635-212 and issued an Honorable Discharge Certificate.  He had completed 2 months and 22 days active service that was characterized as honorable. 

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6b(2) of the regulation provided that members who have been determined to suffer from character and behavior disorders were subject to separation for unsuitability.  This regulation further provided that Soldiers separated by reason of unsuitability would be furnished an honorable or general discharge certificate as warranted by their military record.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.







DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have received a medical discharge.

2.  There is no evidence of record and the applicant has not submitted any evidence that he had a medical condition which would have warranted him being considered by a MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  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.




      _______ _   X_______   ___
               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)                                         AR20080007477



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ABCMR Record of Proceedings (cont)                                         AR20080007477



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