IN THE CASE OF:	 

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090011266 


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 the separation program number (SPN), and reason and authority shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to reflect he was separated due to a medical disability.  He also requests that his medical treatment records be corrected to reflect an injury to his right knee.

2.  The applicant states his medical treatment records should be corrected to reflect an injury to his right knee and not his left knee.  

3.  The applicant provides a DD Form 214 and military medical treatment records in support of this 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 is requesting that his medical records be corrected to show an injury to his right knee instead of his left knee; however, it is not the policy of this Board to create or alter service medical records.  Such records merely reflect the observations and opinions of medical professionals at the time they were recorded.  Therefore, this portion of the applicant's request will not be discussed further in this Record of Proceedings.

3.  The applicant enlisted in the Regular Army and entered active duty on 
17 September 1971.  He was trained in and awarded military occupational specialty 72B (Communications Center Specialist). 

4.  The applicant's record shows he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated during his active duty tenure: 28 January 1972, for failing to go to his appointed place of duty at the time prescribed on 19 January 1972; 25  February 1972, for failing to go to his appointed place of duty at the time prescribed on 12 February 1972; 26 July 1972, for being disrespectful in language towards his superior noncommissioned officer; and 31 August 1972, for being absent without authority from his place of duty.

5.  The applicant's military records contain three statements from his chain of command which recommend that he be separated from the service due to his poor attitude and performance.

6.  The applicant's record contains a partial SF 88 (Report of Medical Examination) and an SF 89 (Report of Medical History) which documents his separation physical examination processing.  These documents reveal no disabling physical or mental conditions that would have supported the applicant's separation processing through medical channels. 

7.  On 4 October 1972, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations) for unsuitability.  The commander cited the applicant's apathy, constant rebellion, and failure to conform to military life as the reasons for the proposed separation action.

8.  On 4 October 1972, 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 in his own behalf.


9.  On 4 October 1972, the separation authority approved the recommendation for separation and directed that the applicant be issued a GD, under honorable conditions.  On 16 November 1972, the applicant was discharged accordingly.

10.  The applicant's DD Form 214, dated 16 November 1972, shows he was separated under the provisions of AR 635-212, unsuitability.  He was assigned an SPN of 46A in conjunction with his reason and authority for separation.  He had completed 1 year, and 2 months of active military service.

11.  The applicant's record is void of any medical treatment records or other documents indicating that he was suffering from a physically or mentally disabling condition at the time of his discharge. 

12.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.  This same regulation provided that when the discharge was based on unsuitability - apathy, defective attitudes and inability to expend effort constructively, then SPN 46A would be used.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the SPN identifying the reason for his discharge as unsuitability is not supported by the record and that it should be changed was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant was separated under the provisions of AR 635-212, due to unsuitability and assigned an SPN of 46A based on this reason and authority.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.



3.  Although the applicant was treated for medical conditions documented in the treatment record that he provided, there is no evidence that these conditions were unfitting, or that he suffered from any physical or mental condition that supported disability separation processing through medical channels at the time of his discharge.  Therefore, 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)                                         AR20090011266



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ABCMR Record of Proceedings (cont)                                         AR20090011266



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