BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100000060 


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 general discharge under the expeditious discharge program (EDP) be changed to show he was separated due to a physical disability. 

2.  The applicant states hearing impairment and a traumatic head injury impaired his ability to serve.  The Department of Veterans Affairs (VA) has determined that he has a service-connected disability due to post traumatic stress disorder (PTSD) and mental impairments.  A year after he was discharged, he was imprisoned for 13 years. 

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty); a letter, dated 19 September 2008, from the VA stating he is profoundly deaf; VA health care documents; Chronological Record of Medical Care, dated an 8 September 1978; his State of South Carolina Department of Corrections Official Release Card, dated 1 June 1993; a letter, dated 2 August 2009, from the VA showing the applicant was forwarded 1,349 pages/documents from his record; and a audiogram, dated 15 July 2007.

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 on 18 July 1977, he completed training as a postal clerk and was stationed in Augsburg, Germany.

3.  He was advanced to pay grade E-2 on 18 January 1978 and to pay grade E-3 on 18 July 1978.

4.  The available evidence shows the following actions occurred:

   a.  On 13 March 1978, he was counseled for being late for work, having a poor attitude and being unprepared to lead physical training formation.  He was also counseled for lacking enthusiasm for learning his new job, having a disinterested attitude, and leaving the work area without permission.

   b.  On 12 May 1978, a letter shows he was admonished for fighting in the barracks on 9 May and 6 July 1978.  He was also counseled for leaving his place of duty despite being told twice that he could not go.
   
   c.  On 20 July 1978, he was counseled for being late for work and failing to follow sick call procedures.

   d.  On 3 August 1978, he was counseled for having an unclean room on 
31 July 1978.  He was told to clean his room daily; however, his room was found in the same condition upon the next inspection.

   e.  On 16 August 1978, he was counseled for failing to take care of his personal business and causing extra work for his fellow Soldiers.

   f.  A Chronological Record of Medical Care, dated an 8 September 1978, shows the applicant was examined after he complained of a possible head injury or possible drugs.  It appears the applicant alleged to have hit his right forehead on a door in the barracks while pulling on it to open it.  It appears he was examined and returned to duty.
   
   
   
   g.  On 25 September 1978, he was counseled for being late for work, on 8 September and for failure to return to work on that same day when he was given permission to make a quick trip to get personal items from his room.  He was also counseled for a complaint about loud music coming from his room and for staggering with the appearance of being under the influence of some unknown substance. 
   
   h.  On 20 September 1978, he counseled for leaving his place of duty despite having been told a half-hour earlier that he could not leave.
   
   i.  On 22 September 1978, he went to sick call and forged a sick slip putting himself on quarters for 24 hours.  On 16 October 1978, nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice was imposed against him for falsifying a sick slip.

5.  On 15 November 1978, the applicant's commander notified the applicant that he was recommending him for separation under the provisions of Army Regulation 635-200, chapter 5, due to the EDP with a general discharge.  The commander cited the applicant's subsequent misconduct and his failure to change his behavior as the basis for the recommendation.  The applicant was advised of his rights.  The applicant acknowledged the notification and waived his rights to submit statements in his own behalf.

6.  Subsequently the following misconduct occurred:

   a.  On 21 November 1978, the applicant was officially reprimanded for being drunk in public and refusing to pay for a drink he had ordered.
   
   b.  On 28 December 1978, NJP was imposed against the applicant for assault and indecent exposure. 

7.  The EDP separation action was temporarily suspended and the applicant was considered for discharge under Army Regulation 635-200, chapter 14 for misconduct; however, on 8 January 1979, the separation authority approved the EDP recommendation and directed that a General Discharge Certificate be issued.

8.  Accordingly, on 25 January 1979 the applicant was discharged.  He had completed 1 year, 6 months, and 8 days of creditable active service.

9.  The applicant's medical records are not available.

10.  Army Regulation 635-200 provides the policy and sets forth the procedures for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  

11.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

12.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends hearing impairment and a traumatic head injury impaired his ability to serve.  The VA has determined he has a service-connected disability due to PTSD and mental impairments.  A year after he was discharged, he was imprisoned for 13 years.

2.  To be separated for physical disability a service member must be incapable of performing his assigned duties.  The available evidence does not show the applicant was physically incapable of performing his duties.

3.  The 8 September 1978 Chronological Record of Medical Care was considered, but the applicant was subsequently returned to duty and he continued to perform his duties as his record clearly shows. Furthermore, according to the available evidence the applicant's poor attitude, lack of self-discipline, and misconduct began in March 1978 which was well before he alleges he injured his head.
4.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant's character of service is commensurate with the applicant's overall record of military service.

5.  There is no documentation to support the applicant's contentions and no rationale to support a conclusion that would warrant the 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)                                         AR20100000060



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ABCMR Record of Proceedings (cont)                                         AR20100000060



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