IN THE CASE OF:	   

		BOARD DATE:	  	   9 October 2008

		DOCKET NUMBER:  AR20080010001 


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, that his general under honorable conditions discharge be changed to a medical discharge.

2.  The applicant states that he was in the hospital for over two months while he was in the service with the same illness and disability for which he now receives a pension.  His doctor ordered him to be hospitalized and to receive lifetime treatments.  He states that he was also ordered not to apply for Department of Veterans Affairs (VA) disability.  

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 12 July 1967 for a period of three years.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  He later completed basic airborne training at Fort Benning, Georgia.  His highest grade held was private first class (PFC)/E-3.  

3.  On 17 May 1968, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 9 April 1968 to 28 April 1968.  He was sentenced to confinement at hard labor for 2 months (suspended for 2 months); performance of hard labor without confinement for 30 days; a forfeiture of $68.00 for 3 months; and a reduction to private (PV1)/E-1. 

4.  The applicant’s service personnel records contain an FB Form 1638 (Statement - Article 15, MCM [Manual for Court-Martial]), which shows he received nonjudicial punishment on 2 August 1968 for being AWOL from 2 August 1968 to 6 August 1968. 

5.  His service personnel records contain a Hospital Summary, dated 30 October 1968, which shows he was evaluated at Brentwood Veterans Army Hospital in Los Angeles, California and was diagnosed as being schizophrenic, chronic and undifferentiated type.  

6.  On 7 January 1969, the applicant underwent a psychiatric examination and was diagnosed as having an immature personality disorder manifested by poor stress tolerance, poor motivation, poor response to new situations, immaturity, and manipulative stress.  The psychiatrist recommended separation under the provisions of Army Regulation 635-212.  

7.  On 8 January 1969, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 for unsuitability - character and behavior disorders.  The applicant was advised of his rights.  He consulted with legal counsel, waived consideration of his case by a board of officers, and did not submit statements in his own behalf.

8.  On 29 January 1969, the applicant was convicted by a special court-martial of being AWOL from 15 September 1968 to 17 September 1968 and from 24 September 1968 to 26 October 1968.  He was sentenced to confinement at hard labor for 6 months; a forfeiture of $70.00 for 6 months; and a reduction to PV1.  


9.  On 6 February 1969, the separation authority waived rehabilitative transfer requirements and directed discharge under the provisions of Army Regulation 635-212, paragraph 6b(2) with issuance of a General Discharge Certificate.  

10.  On 18 February 1969, the applicant was discharged from active duty.  He completed 1 year, 2 months, and 22 days of active military service with 75 days of lost time due to AWOL and confinement.

11.  There is no evidence in the available records which shows the applicant was diagnosed by competent military medical authorities with an unfitting medical condition prior to his discharge.

12.  A VA Rating Decision, 17 July 2000, shows the applicant was granted service-connection for panic disorder with an evaluation of 100 percent disability rating. 

13.  There is no evidence which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.   

14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

15.  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 according to accepted medical principles, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

16.  Army Regulation 635-40, states in part that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  

17.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-31a, in effect at the time, stated that 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 will be dealt with through appropriate administrative channels.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army Regulation 635-212, paragraph 6b(2) was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  There is no military evidence of record which indicates the applicant incurred any medical condition that rendered his medically unfit prior to his discharge.  A military psychiatrist diagnosed him with an immature personality disorder.  In accordance with Army Regulation 40-501, this condition rendered him administratively unfit, but not physically disabled.  

3.  It is acknowledged that the applicant had been diagnosed with schizophrenia in October 1968.  His first period of AWOL in August 1968 may have possibly been a manifestation of schizophrenia.  However, it would then appear that, based on accepted medical principles, his condition existed prior to service.  Therefore, there is insufficient evidence at this point in time, nearly 40 years later, to show he would have been eligible for a medical separation.  

4.  It is acknowledged that the applicant has been treated at VA hospitals for schizophrenia and was granted service connection for panic disorder.  However, there is no evidence of record which shows the narrative reason for his discharge was administratively incorrect, erroneous, or unjust.  

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)                                         AR20080010001



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ABCMR Record of Proceedings (cont)                                         AR20080010001



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