IN THE CASE OF:	  

		BOARD DATE:	       25 September 2008

		DOCKET NUMBER:  AR20080011666 


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 discharge be upgraded to honorable or changed to a medical discharge. 

2.  The applicant states, in effect, that he was suffering from duress and stress at the time in question.  

3.  The applicant provides documents, dated 27 May 2008 and 26 March 2008, from the Department of Veterans Affairs; a copy of his DD Form 214 (Report of Transfer or Discharge); extracts from his discharge packet; service medical records; and documentation from the Social Security Administration.   

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 on 3 April 1969 for a period of 3 years.  He successfully completed basic combat training.

3.  On 11 August 1969, nonjudicial punishment was imposed against the applicant for unlawfully receiving stolen property.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 5 December 1969, contrary to his pleas, the applicant was convicted by a special court-martial of two specifications of being absent without leave (AWOL) (from 2 September 1969 to 16 September 1969 and from 7 October 1969 to 
27 October 1969).  He was sentenced to be confined at hard labor for 2 months and to forfeit $80 pay per month for 2 months.  On 7 January 1970, the convening authority approved the sentence.

5.  On 8 January 1970, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unsuitability. He cited the applicant’s immature personality manifested by the inability to function away from home, his alleged drug use, and that he experimented with deviant sexual activity including homosexuality.  A psychiatric evaluation is listed as an enclosure to the unit commander’s letter; however, this evaluation is not available.

6.  On 12 January 1970, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

7.  On 2 February 1970, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

8.  On 10 February 1970, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-212 for unsuitability (character and behavior disorders).  He had served 5 months and 25 days of creditable active service with 105 days lost due to AWOL and confinement.  

9.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his discharge. 

10.  On 24 August 1982, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.  

11.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general or honorable discharge was considered appropriate.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

14.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s brief record of service included one nonjudicial punishment, one special court-martial conviction, and 105 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  
 
3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

4.  There is no medical evidence of record that shows the applicant had any medical condition prior to his discharge on 10 February 1970.  There is also no evidence of record to show he was ever medically unfit to perform his duties.  Therefore, there is no basis for granting a medical discharge. 

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)                                         AR20080011666





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ABCMR Record of Proceedings (cont)                                         AR20080011666



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