IN THE CASE OF:	

		BOARD DATE:	27 August 2009 

		DOCKET NUMBER:  AR20090003661 


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 the reason and authority for his discharge on 
16 December 1974 be changed to a medical discharge.

2.  The applicant states he searched the internet concerning the reason and authority for his discharge.  He states he was shocked when he found the meaning of paragraph 13-5b(2) of Army Regulation 635-200 (Personnel Separations) (unsuitability due to character and behavior disorders).  He states he is super sensitive, but not to that extent.

3.  The applicant listed five documents he was submitting in support of his application.  However, these documents were not attached when his application was received.  He did provide a copy of his DD Form 214 (Report of Separation From Active Duty) with an effective date of 16 December 1974.

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 records show he enlisted in the Regular Army on 21 January 1974 for a period of 3 years.  He had previously served 
1 year, 9 months, and 2 days of active service in the Regular Army.  

3.  On 16 April 1974, the applicant was assigned to the Medical Company at 
Fort Richardson, AK .

4.  On 10 August 1974, the applicant received a mental status evaluation.  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 board proceedings.

5.  On 13 September 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave from on or about 29 July 1974 to on or about 8 August 1974.

6.  In a statement, dated 1 November 1974, the Chief, Mental Hygiene, U.S. Army Health Clinic, Mental Hygiene Consultation Service stated the applicant's company commander reported that the applicant was not doing adequate work and that he was an administrative, personal, and disciplinary burden on his organization.  The Chief stated his own observations of the applicant were that his relationships in the Army were similar to those he had prior to his enlistment and were characterized by excessive sensitivity on his part which led him to make angry remarks or to get into fights with other people.  The Chief recommended the applicant be separated from the Army under the provisions of Army Regulation 635-200, character and behavior disorders.

7.  The applicant's commander notified him that the commander was initiating action to discharge him under the provisions of Chapter 13 of Army Regulation 635-200 for unsuitability.  The commander stated that the proposed action was based on psychiatric evaluations and the recommendations of the Chief, Mental Hygiene, U.S. Army Health Clinic, Mental Hygiene Consultation Service.  

8.  The applicant's commander advised him of his right to have his case considered by a board officers, to appear in person before a board officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers. 

9.  In the endorsement of the commander's letter, the applicant stated he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant did not submit statements in his own behalf and he waived any representation by counsel.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  

10.  On 5 November 1974, the applicant's commander recommended the applicant be discharged from the military service because of unsuitability.  The commander stated that the recommendation was based on psychiatric evaluations and the recommendation of the Chief, Mental Hygiene, U.S. Army Health Clinic, Mental Hygiene Consultation Service.  

11.  On 10 December 1974, the appropriate authority directed the applicant's discharge for unsuitability.  

12.  On 16 December 1974, the applicant was discharged by reason of unsuitability - traits of character or behavior disorder.  He had completed 
10 months and 26 days of active service that was characterized as under honorable conditions.

13.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  This regulation stated that character and behavior disorders were considered to render an individual administratively unfit rather than unfit because of physical disability.  This regulation also stated that interference with performance of effective duty would be dealt with through appropriate administrative channels.

14.   Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5b(2), then in effect, provided for the discharge of individuals for unsuitability due to character and behavior disorders when it was determined by medical authority that such disorders were chronic and not responsive to attempts at rehabilitation and interfered with the individual's ability to adequately perform their duties.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was shocked when he realized the reason for the discharge he received on 16 December 1974.  However, when he was notified by his commander that he was being recommended for discharge the commander informed him the action was being taken based on psychiatric evaluations and recommendations of the Chief, Mental Hygiene, U.S. Army Health Clinic, Mental Hygiene Consultation Service.  

2.  As provided for in Army Regulation 40-501, the applicant was determined to be administratively unfit and therefore not unfit due to a physical disability.  Therefore, he was processed for discharge through the appropriate administrative channels.

3.  The applicant was informed of his rights and he waived these rights and he did not submit a statement in his behalf.

4.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  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)                                         AR20090003661





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ABCMR Record of Proceedings (cont)                                         AR20090003661



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