BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017122 


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 his July 1975 general discharge be upgraded to fully honorable.

2.  The applicant states a recent decision by the Board of Veterans’ Appeal determined that he was suffering from an acquired psychiatric disorder.  He maintains his discharge was due to a serious mental disease and wasn’t due to apathy.  He states he is now service connected for bipolar and major depression.  He has applied for benefits and simply wants his military records to show an honorable discharge.

3.  The applicant provides a copy of the August 2009 decision by the Board of Veterans’ Appeals granting him service connection for an acquired psychiatric disorder, to include bipolar disorder, and major depression with psychotic features.

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 in the Army National Guard on 2 October 1973 and completed his initial active duty for training between January and May 1974.  Following training he returned to his National Guard Unit.

3.  On 5 May 1975, the applicant was involuntarily ordered to active duty for failing to participate in unit training assemblies.  He was assigned duties as a truck driver at Fort Polk, Louisiana.

4.  In June 1975, he was punished under Article 15 of the Uniform Code of Military Justice for being absent from his place of duty.  His punishment included
7 days of correctional custody at the installation correctional custody facility.  Correctional custody officials discovered marijuana in his possession and he was released.

5.  On 16 July 1975, he underwent a mental status evaluation which found:

* His behavior was normal
* He was fully alert and oriented
* His mood was within normal limits
* His thought process was clear, his thought content normal, and his memory was good
* He was mentally responsible and able to distinguish right from wrong
* He met medical retention standards

6.  On 17 July 1975, the applicant's commander initiated action to separate him because of unsuitability under the provisions of Army Regulation 635-200, paragraph 13-5b.  The commander noted the applicant:

* Was a constant disruptive force to the unit and his chain of command
* Required close supervision to complete even minimal labor
* Failed to accept the military way of life
* Lacked cooperation with peers and supervisors

7.  The commander noted the applicant demonstrated he was eligible for discharge due to unfitness but because of his apathy he more strongly met the criteria established for unsuitability.  The applicant acknowledged receipt and waived his attendant rights.


8.  The separation authority approved the discharge recommendation and directed the issuance of a general discharge under honorable conditions.

9.  The applicant was discharged on 31 July 1975.  He had accumulated 
4 months and 1 day of active Federal service while undergoing training in 1974 and a total of 2 months and 27 days during his current period of active service.  His active Federal service totaled 6 months and 28 days.  The authority for his discharge was recorded as Army Regulation 635-200, chapter 13, and he received a separation code (SPD) of JMB.

10.  Army Regulation 635-5-1 (SPDs) associates the SPD code of JMB with separation by reason of unsuitability-traits of character or behavior disorder.

11.  In 1978 the Army Discharge Review Board concluded the applicant’s record did not support evidence of a character or behavior disorder and modified his SPD Code to show JMJ.  This SPD Code was associated with separation by reason of unsuitability-apathy, defective attitude or inability to expend effort constructively.  On 15 May 1978 a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued reflecting the modification of the applicant’s SPD Code and reason for discharge.

12.  In 2009 the Board of Veterans’ Appeal noted:

Given treatment records dated in 1975 and 1976 showing treatment for and diagnosis of a psychiatric disorder, the VA examiner’s observation in May 2009 that it is possible that the veteran exhibited symptoms of a psychiatric disability prior to his discharge in 1975, the statements of the Veteran’s lay witnesses as to their observations of the veteran’s behavior during active service (his mother) and the change in the Veteran’s behavior following his discharge in 1975 (the remaining seven statements), the Board finds, the evidence is, at the very least, in equipoise, as the VA had not met its burden of presenting a preponderance of the evidence against the claim.

13.  The Board of Veterans’ Appeals granted the applicant the benefit of the doubt and concluded service connection for an acquired psychiatric disorder to include bipolar disorder and major depression with psychotic features was warranted.

14.  References:

		a.  Army Regulation 635-200 (Personnel Separation), chapter 13 in effect at the time of the applicant’s discharge, provided for the separation of enlisted Soldiers for unsuitability: 
* Paragraph 13-5b(1) provided for separation for inaptitude
* Paragraph 13-5b(2) provided for separation for character and behavior disorders
* Paragraph 13-5b(3) provided for separation for apathy, defective attitudes, and inability to expend effort constructively

		b.  Army Regulation 635-200, paragraph 3-7a, provided an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious any other characterization would be clearly inappropriate.  

         c.  Army Regulation 635-200, paragraph 13-31b, provided that an individual separated for unsuitability would be furnished an honorable or general discharge certificate as warranted by his military record.

		d.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  During the applicant’s brief period of active service in 1975 he received one Article 15 and was released from correctional custody after being found with marijuana.  His commander noted he required constant supervision, disrupted the unit, and could not get along with his peers and supervisors.  His service clearly did not meet the standards of a fully honorable discharge.

2.  Whether the applicant’s unsuitability was based on apathy or a character and behavior disorder the regulation permitted issuance of either an honorable or general discharge as warranted by the individual’s military record.  The applicant’s military record supported issuance of the general discharge under honorable conditions.

3.  The applicant’s argument that the VA’s 2009 determination now warrants service connection is not compelling evidence to excuse his behavior in 1975 or serve as justification to upgrade his discharge to fully honorable.  In 1975, competent military medical authorities did not diagnosis him with a psychiatric disorder.

4.  The fact that the VA, in its discretion, awarded the applicant service connection is a prerogative exercised within the policies of that agency.  It does not, of in itself establish an error in the Army’s disposition of his case.

5.  In order to justify correction of a military record the applicant must show 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)                                         AR20090017122



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ABCMR Record of Proceedings (cont)                                         AR20090017122



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