IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20090020944 


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 changed to a medical discharge.

2.  The applicant states he was doing fine in the military until he sustained a head injury and he was diagnosed with a severe anti-personality disorder and discharged from the Army.  He also states that he believes his diagnosis was an error and an injustice because he was considered fit for duty when he enlisted in the Army.  He further states that without his discharge reflecting the medical reason for his discharge, he is unable to obtain benefits from the Department of Veteran Affairs (VA), he is unable to maintain gainful employment, and he has been put on social security disability (SSD).

3.  The applicant provides a copy of:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 1 August 1969
* four Standard Forms (SFs)  513 (Consultation Sheet), dated between     17 June and 15 July 1969
* seven SFs 600 (Chronological Record of Medical Care), dated between 11 June and 15 July 1969
* two SFs 88 (Report of Medical Examination), dated 27 May and 23 July 1969
* an SF 93 (Report of Medical history), dated 23 July 1969
* 
a Fort Leonard Wood (FLW) Form 107 (Report of Psychiatric Evaluation), dated 14 July 1969.

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 Regular Army (RA) on 29 May 1969.

3.  He received non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

* on 21 June 1969, for failing to go at the time prescribed to his appointed place of duty 
* on 8 July 1969, for being absent without leave (AWOL) from 1 – 7 July 1969

4.  The applicant submitted copies of four SFs 513, which show he was referred to internal medical for headaches that had started 5 weeks earlier, feeling faint in the heat, no history of migraines, and tension.  He was referred to mental health on 10 July 1969.

5.  The applicant submitted copies of two SFs 88, which show he underwent a physical examination on 27 May and 23 July 1969.

6.  The applicant submitted copies of seven SFs 600, which show he was seen for extreme dizziness on several occasions, fell on 12 June1969, passed out on several occasions, and he had a history of headaches.  He was referred to mental health on 10 July 1969.


7.  An SF 600, dated 10 July 1969, shows a Medical Corps captain evaluated the applicant and opined the applicant should see mental hygiene again to determine if he was fit for Army life.

8.  The applicant submitted an FLW Form 107, which shows he was being interviewed for an Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) evaluation.  The examining psychiatrist found the applicant was a 17-year old Soldier who had been in the Army since 29 May 1969.  The applicant stated he was AWOL from 30 June to 7 July 1969.  The psychiatrist stated that the applicant felt that when he became angry he felt like killing that person and was threatening to do it.  This seems to be a declaration that the applicant would not tolerate any failure to get his own way.  He had been working at convincing people he should be discharged from the Army.  The psychiatrist also stated that the applicant showed no objective evidence of mental illness and that his unit felt he was unable to adjust to the Army.

9.  The psychiatrist found no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  He added that the applicant possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by the command.

10.  On 16 July 1969, the applicant's company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 before the expiration of his term of service based on his psychological inability to adjust to military service.  The commander recommended a general discharge.

11.  On the same date the applicant acknowledged he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was submitting statements in his own behalf and that he waived representation by counsel.  The applicant acknowledged that as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.


12.  The intermediate commander interviewed the applicant on 26 July 1969.  Subsequently, on 28 July 1969, the commander recommended approval of the applicant's separation action with a general discharge.

13.  On 28 July 1969, the separation authority approved the recommendation for elimination for unsuitability and directed the applicant be discharged with issuance of a General Discharge Certificate.

14.  On 1 August 1969 the applicant was discharged under the provisions of Army Regulation 635-212 for unsuitability with a general discharge with a separation program number (SPN) of 264 (character and behavior disorder, currently known as personality disorder).  He had completed 1 month and         27 days of total active service with 6 days of time lost.

15.  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.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), provides 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 their office, grade, rank, or rating.

17.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Paragraph 3-35 (Personality, sexual and 

gender identity, or factitious disorders; disorders of impulse control not elsewhere classified; substance-related disorders) provides that these conditions may render an individual administratively unsuitable rather than because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's record nor did the applicant submit any evidence showing he was being considered for a medical discharge from the military.  On the contrary, the evidence of record shows that after exhaustive medical tests, examinations, and treatment he was diagnosed by competent military medical authority with a character and behavior disorder and cleared for any administrative decision deemed appropriate by his command.

2.  There is no evidence in the applicant's records and the applicant did not provide any evidence showing he sustained an injury and/or suffered from an illness that would have warranted his entry into the physical disability evaluation system.  There is also no evidence to suggest he suffered from a medical condition that would have disqualified him for retention or separation.  By regulation, his diagnosed character and behavior disorder did not warrant referral to a medical evaluation board.

3.  The applicant’s contention that he cannot get service-connected disability assistance from the VA because of his discharge is noted.  However, this issue is not sufficiently mitigating to warrant relief in this case.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

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)                                         AR20090020944



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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