IN THE CASE OF:	

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090012294 


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 that his general discharge be upgraded to fully honorable.  In the alternative, he requests a medical discharge.

2.  The applicant states that he was very young and did not understand what was transpiring and was never actually told the reason for his discharge.  To this day he still cannot tell you why he was discharged.  He states that he was only given one Article 15 and that was because of a misunderstanding with the duty roster.

3.  The applicant continues that he was working in a psychiatric facility and his proximity with mental patients started to affect his behavior.  He believes the Army should have investigated to see if he was being mentally affected by his duty assignment and, if so, given him a medical discharge.

4.  The applicant provides excerpts of his military records.

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 records show that he enlisted in the Regular Army on 31 May 1961 and was awarded the military occupational specialty of medical corpsman.  His date of birth is 15 February 1943, which made him 18 years old when he enlisted.

3.  On 19 April 1962, the applicant was convicted by a summary court-martial for failure to go to his appointed place of duty.

4.  On 9 November 1962, the applicant was given a psychiatric evaluation.  At that time he was diagnosed with severe chronic emotional instability reaction manifested by fluctuating emotional attitudes, impulsivity, poor judgment, poor capacity for adapting to an authoritarian environment, and poor quality of motivation.  The psychiatrist found the applicant to have no mental disease or defect sufficient to warrant disposition through medical channels and recommended that the applicant be separated due to unsuitability.

5.  On 10 November 1962, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failure to repair and willful disobedience.

6.  On 23 November 1962, the applicant signed a statement acknowledging that he had been advised by his commander that he was being recommended for elimination from the service for unsuitability under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability).  He acknowledged that he was given a copy of the commanding officer's report and copies of statements submitted to support the recommendation for discharge.  He acknowledged that he had been counseled and advised of the basis for the elimination action.  He further acknowledged that he could be separated from the service under conditions other than honorable and of the effects of such a discharge.  The applicant continued that he understood that he was entitled to a hearing by a board of officers but waived that right and waived the right to submit a statement in his own behalf.

7.  On 23 November 1962, the applicant's commander forwarded a recommendation to separate the applicant due to unsuitability.  His commander stated that the applicant had been counseled by the detachment commander, first sergeant, billets noncommissioned officer in charge, and others on many occasions.  In these counselings, the correct behavior pattern and duty performance required of enlisted men was pointed out to him and the applicant indicated that he would endeavor to change his bad habits.  However, in each instance he reverted to his bad habits after a few days.  His commander continued that the applicant was relieved of duty by the chief nurse of the hospital and has been working in the orderly room under the direct supervision of the first sergeant.  The applicant's commander submitted statements in support of his recommendation.  In those statements it was said the applicant had not shown a proper attitude toward work, did not respect authority, was tardy to work, was absent from his duty station at the hospital for 90 minutes, missed training, was disinterested in giving patient care, and did not have the proper appearance.

8.  The commander's recommendation was approved by the appropriate authority.  Accordingly, on 6 February 1963, the applicant was given a general discharge due to unsuitability – inaptitude.

9.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d) enuresis, (e) chronic alcoholism; and (f) Class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  Only those Soldiers determined physically unfit to perform their duties will be processed for a medical discharge or retirement.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's statement that he was very young, did not understand what was transpiring, and was never actually told the reason for his discharge is not supported by the evidence of record.  The applicant was 18 years old when he enlisted.  Many Soldiers enlist at 17 and 18 years of age and honorably complete their enlistments.  As for not being told the reason for his discharge, he signed a statement saying that he was told he was being processed for unsuitability, the type of discharge he could receive, and that he could request that a board of officers consider his case.

2.  The applicant's contention that he was only given one Article 15 is true.  However, he was also convicted by a summary court-martial and had been counseled on numerous occasions on his attitude and duty performance.

3.  The documents provided by the applicant's commander in support of his recommendation to separate the applicant for unsuitability certainly supported such a separation.

4.  As for a medical discharge, the applicant was given a psychiatric evaluation wherein the psychiatrist found the applicant to have no mental disease or defect sufficient to warrant disposition through medical channels.  Since the applicant was not found medically disqualified, he would not have been referred to an MEBD.  Without an MEBD he could not have been referred to a PEB.  Without a PEB he could not have been given a medical discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090012294



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ABCMR Record of Proceedings (cont)                                         AR20090012294



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