IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20100000215 


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 the reason for his separation be changed to a medical separation.

2.  The applicant states, in effect, that he was psychologically injured during combat operations in the Republic of Vietnam.  He states he should have been medically discharged, not administratively separated.  He also states he was a victim of bias (prejudice) in the military.

3.  The applicant did not provide any supporting evidence with his 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 enlisted in the Regular Army on 28 January 1970 for a 3-year period.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 70A (Clerk).

3.  The applicant served in the Republic of Vietnam from 9 July 1970 to 12 September 1970.

4.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 19 March 1970 for being absent without leave.

5.  On 2 September 1970, the command chaplain met with the applicant in a counseling session.  The chaplain's statement documents the fact that the applicant had a child, born out of wedlock, whose mother was reported to be abusing the child.  The chaplain stated the applicant appeared anxious and confused.  He further stated that he did not feel the applicant was capable of performing his required duties and that the applicant presented a danger to himself and to others in his unit.  The chaplain concluded his statement by recommending the applicant's chain of command consider administratively discharging the applicant from the U.S. Army.

6.  On an unknown date, a staff judge advocate met with the applicant in the Republic of Vietnam.  In his letter to the applicant's unit commander, he recommended that the applicant be considered either for a hardship discharge or a discharge for unsuitability.  The staff judge advocate indicated that the applicant wished to get legal custody of his child because the mother reportedly was abusing and neglecting the child.  He also stated that the applicant appeared to be mentally stressed which probably caused him to attempt to take his own life by running out beyond the camp perimeter.

7.  On 8 September 1970, a psychiatrist medically evaluated the applicant.  The psychiatrist indicated he found no evidence of underlying, previously unrecognized, medically disqualifying emotional illness.  He further indicated that the applicant was and is mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in board proceedings.  He stated there was no evidence of psychosis or neurosis.  The psychiatrist did diagnose the applicant with a passive-aggressive personality and granted psychiatric clearance for any administrative or disciplinary action deemed appropriate by the applicant's chain of command.  The psychiatrist also certified that the applicant met the retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

8.  On 8 September 1970, the applicant's company commander recommended that the applicant be required to appear before a board of officers to determine whether he should be discharged before the expiration of his term of service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The commander's recommendation was based on the applicant's documented character disorder and his unsatisfactory efficiency in the unit.  He recommended that a rehabilitative transfer be waived based on the applicant's attempt to take his own life by running into the wires of the company's perimeter.

9.  On 10 September 1970, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and he waived representation by counsel.

10.  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 a 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.

11.  With the intermediate commander's recommendation, the separation authority approved the recommendation for elimination for unsuitability on 11 September 1970.  He waived the requirements for a hearing before a board of officers and a unit rehabilitative transfer.  He directed the applicant's discharge under the provisions of Army Regulation 635-212 for unsuitability with an under honorable conditions characterization of service.

12.  On 14 September 1970, the applicant was discharged accordingly and reduced to pay grade E-1 under the provisions of Army Regulation 635-212 for unsuitability with a general discharge.  He had completed 7 months and 14 days of creditable active service with 3 days of lost time under the provisions of Title 10, U.S. Code, section 972.

13.  On 5 July 1977, the Army Discharge Review Board (ADRB) Special Discharge Review Program (SDRP) upgraded the applicant's discharge to an honorable based on his age at enlistment, his general aptitude, length of service, education level, and his personal problems that contributed to his actions that led to his discharge.  By unanimous vote, the ADRB affirmed the SDRP decision.

14.  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:  inaptitude, character and behavior disorders, apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively), alcoholism, enuresis, and homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but 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.

15.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program known as the DOD SDRP required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

16.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501, in effect at the time, provided the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter would be referred for medical processing.  In stated personality disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of efficient duty in association with a personality disorder would be dealt with through appropriate administrative channels.

17.  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 an medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he should have been medically separated due to psychological injuries that he incurred in combat operations in the Republic of Vietnam.

2.  The evidence of record does not support the applicant's contention that he sustained psychological injuries during combat operations.  The evidence shows that a psychiatrist diagnosed him with a passive-aggressive personality disorder with no evidence of psychosis or neurosis.  Therefore, the psychiatrist did not refer the applicant to a medical evaluation board.  In fact, the psychiatrist certified that the applicant met medical retention standards and recommended that the applicant be administratively discharged.

3.  Since the applicant's passive-aggressive personality diagnosis was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical separation or retirement.

4.  The applicant's administrative separation complied with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The SDRP reviewed the applicant's record and upgraded his discharge to honorable conditions.  The ADRB concurred and directed that the applicant's discharge be upgraded to honorable.  An updated copy of his DD Form 214 (Report of Separation from Active Duty) was prepared and issued.

5.  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 that requirement.  Nor has the applicant provided evidence to show that a bias existed within the processing of his administrative separation.

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)                                         AR20100000215



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ABCMR Record of Proceedings (cont)                                         AR20100000215



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