IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090004347 


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 Undesirable Discharge (UD) of 
28 February 1968 be changed to a medical discharge. 

2.  The applicant states, in effect, that he makes no claim of injustice related to his UD, only an error due to unknown circumstances.  He claims neither he nor the Army were aware of his medical condition.  

3.  The applicant provides a self-authored statement, Social Security Administration (SSA) Summary of Evidence (Form OMB 0960-0430) packet, which includes an exhibit list and findings, Selective Service System letters, and a definition of alcoholism paper 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 record shows he was inducted into the Army of the United States and entered active duty on 16 May 1967.  His record confirms he never completed advanced individual training (AIT) and was never awarded a military occupational specialty (MOS).  

3.  The applicant’s record shows that during his active duty tenure, he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement. 

4.  On 7 July 1967, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 3 through or about 6 July 1967.  His punishment for this offense was a forfeiture of $21.00 and 14 days of restriction and extra duty.  

5.  On 8 September 1967, a Special Court-Martial (SPCM) found the applicant guilty of violating Articles 86 and 134 of the UCMJ as follows:  Article 86, by being AWOL from on or about 18 July through on or about 9 August 1967; and Article 134, by breaking restriction.  The resultant sentence was confinement at hard labor for 3 months and a forfeiture of $60.00 per month for 3 months.  

6.  On 21 November 1967, a SPCM found the applicant guilty of violating Article 86 of the UCMJ for being AWOL from on or about 14 through on or about 
24 October 1967.  The resultant sentence was confinement at hard labor for 
6 months and a forfeiture of $60.00 per month for 6 months.  

7.  On 20 December 1967, a SPCM found the applicant guilty of violating Articles 95 and 86 of the UCMJ as follows:  Article 95, by escaping lawful custody on or about 27 November 1967; and Article 86, by being AWOL from or on or about
27 November through on or about 2 December 1967.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $60.00 per month for 6 months.  

8.  There are no medical records or treatment records on file in the applicant’s  Official Military Personnel File (OMPF) that indicate he was suffering from a disabling mental or physical condition at the time of his discharge processing. 


9.  On 20 February 1968, after being notified of his commander’s intent to initiate action to separate him under the provisions of Army Regulation 635-212, by reason of unfitness, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation, its effects and of the rights available to him, the applicant waived his right to have his case considered by a by a board of officers, his right to a personal appearance before a board of officers, and his right to counsel.  He further elected not to make statements in his own behalf.  

10.  The unit commander recommended the applicant be separated for unfitness under the provisions of Army Regulation 635-212, and stated that the applicant’s continued AWOL and his negative response to both counseling and punishment were his reasons for taking the action.  

11.  On 23 February 1968, the separation authority approved the applicant’s discharge and directed that he receive an UD.  On 28 February 1968, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of 
Army Regulation 635-212, by reason of unfitness and that he received an UD.  It further shows that at the time he had completed 2 months and 5 days of creditable active service and had accrued 221 days of time lost due to AWOL and confinement.  

12.  The applicant provides a SSA evidence summary and an exhibit list, which show he suffers from chronic alcoholism and that he was hospitalized on three separate occasions during the period November 1979 through October 1990.

13.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its
15-year statute of limitations.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation could authorize an honorable or general discharge if warranted by the Soldier's military record; however, an UD was normally considered appropriate for members separating under these provisions. 


15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

16.  Chapter 3 of the same regulation provides guidance on presumptions of fitness.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

17.  Chapter 4 of the same regulation further states that the Physical Evaluation Board (PEB) evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge and the supporting documents were carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, 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, rank, or rating.  The applicant’s military 
medical record provides no indication that he suffered from a physical or mental condition that rendered him unfit to perform his military duties, or that would have warranted his processing through the Army’s PDES at the time of his discharge.  


3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  As a result, absent any evidence suggesting the applicant did not meet medical retention standards at the time of his discharge, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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 this 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)                                         AR20090004347



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ABCMR Record of Proceedings (cont)                                         AR20090004347



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