IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007476 


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, an upgrade of his undesirable discharge to a general discharge under honorable conditions.

2.  The applicant states that during his entrance physical examination at Fort Leonard Wood, MO, he was told he had mental health issues, but he was inducted anyway.  He also states that his bi-polar condition and attention-deficit/ hyperactivity disorder resulted in his inability to adjust to the military.  He does not believe he should have been allowed to enter the military.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  A Standard Form (SF) 89 (Report of Medical History), dated 28 January 1971, completed during the applicant's induction medical examination, shows in item 17 (Statement of Examinee's Present Health in Own Words) the applicant entered "Good, Osgood and Slaughter Disease [Growing Pains in the Knees], High Arches."  There is no entry that shows the applicant had any mental health issues.  Both the applicant and the physician placed their signatures on the form.

3.  An SF 88 (Report of Medical Examination), dated 28 January 1971, completed during the applicant's induction medical examination, shows in the Clinical Evaluation section, item 42 (Psychiatric), that the examining medical official placed a checkmark in the "Normal" column.  There is no entry on the form that shows the applicant had any mental health issues.  Item 77 (Examinee) shows the doctor found the applicant qualified for military service.

4.  The applicant was inducted into the Army of the United States and entered active duty on 25 March 1971.  Upon completion of training he was awarded military occupational specialty 05B (Radio Teletype Operator).  On 17 December 1971, he was assigned to Troop I, 17th Cavalry, Fort Knox, KY.

5.  On 9 February 1972, the applicant's commander notified him of his intent to recommend him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness. The reasons for his action were the applicant's detrimental attitude towards military service and inadequate performance of duty.  The administrative separation packet shows:

   a.  he was counseled by his commissioned and noncommissioned officers on his responsibilities and duties, methods to accomplish his tasks, and how to improve his duty performance; however, the applicant made no attempt to adjust to military service or improve himself;

	b.  he received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on four occasions for three incidents of failure to repair and one for being absent without leave from 2 August to 5 August 1971; and

	c.  the applicant was physically and psychiatrically examined as required by the governing Army regulations. 

       (1)  A DA Form 2496 (Request for Physical and Psychiatric Examination), dated 10 February 1972, shows the applicant was found to meet the physical retention standards required for retention in the Army.
   
       (2)  A USAARMC Form 1172 (Report of Mental Status Evaluation), dated 10 February 1972, shows the applicant's behavior was normal, and he was fully alert and oriented.  His mood was level, thinking process clear, thought content normal, memory good, and he had no significant mental illness.  In addition, the medical official found the applicant mentally responsible, able to distinguish right from wrong and able to adhere to the right.  He also had the mental capacity to understand and participate in board proceedings.

   d.  The applicant acknowledged receipt of the commander's notification and that he was aware of the consequences of the action being considered.

6.  On 14 February 1972, the applicant consulted with counsel and waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also indicated he would not submit statements in his own behalf:

   a.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an undesirable discharge was issued to him.  

   b.  He also acknowledged he understood that he could be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of an undesirable discharge.

7.  The immediate and intermediate commanders recommended approval of the applicant's discharge for unfitness with an undesirable discharge.

8.  On 14 March 1972, the separation authority waived further counseling and rehabilitation, approved the applicant's discharge for unfitness, and directed that a DD Form 258A (Undesirable Discharge Certificate) be issued.

9.  The applicant's DD Form 214 shows he was discharged on 23 March 1972 in accordance with Army Regulation 635-212 with an undesirable discharge.  At the time he had completed 11 months and 25 days of net active service.

10.  On 6 July 1977, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his undesirable discharge.  On 30 November 1977, the ADRB determined the applicant did not meet any of the primary criteria under the Special Discharge Review Program and voted unanimously to deny his request.


11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to a general discharge under honorable conditions because he was told he had mental health issues during his entrance physical examination and he should never have been allowed to enter the Army.

2.  The applicant's contention was carefully considered:

	a.  The Statement of Medical History completed by the applicant for the purpose of his induction into the Army does not show that he claimed any mental health issues.  In addition, the medical examination completed by the physician for the purpose of the applicant's induction into the Army fails to show he had any mental health issues.  In fact, the physician found the applicant was qualified for military service.

	b.  Prior to being separated the applicant was physically and psychiatrically examined.  Records show the applicant had no significant mental illness and was found to meet the physical retention standards required for retention in the Army. 

	c.  Thus, the evidence of record clearly refutes the applicant's contention that he should never have been allowed to enter the Army because he had mental health issues.

3.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was appropriately issued an undesirable discharge and he has not provided any evidence sufficient to support upgrading his discharge.

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)                                         AR20100007476



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)