IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007791 


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, correction the narrative reason for separation on his DD Form 214 (Report of Separation from Active Duty) to show he was medically discharged in lieu of being discharged due to "unsuitability - traits of character or behavior disorder."

2.  The applicant states, in effect, he believes his battery commander rushed to give him a dishonorable discharge under the expeditious discharge program (EDP).  If the Board checks his records it will find that his battery commander was found unfit for the rank of major. 

3.  The applicant claims the medical officer believed his behavior disorder was a result of his father abusing him.  However, he insists he never told the medical officer anything like that, he told him that his father loved him, his brothers and his sisters.  He adds this information was to be used in his EDP; however, he was able to request a review board and the findings were in his favor.  He claims on 2 October 2001, the Department of Veterans Affairs (VA) diagnosed him as having Post Traumatic Stress Disorder (PTSD) with a 50% disability rating.  He alleges his behavior disorder was misdiagnosed based on the wrong reasons. 

4.  The applicant provides a copy of a VA certificate for civil service preference, dated 23 April 2009, and a copy of his DD Form 214. 




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's military personnel records show he enlisted in the Regular Army on 5 June 1973 for a period of 4 years.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty 13B (Field Artillery Crewman) and assigned to Fort Lewis, Washington for duty.   He was further assigned to the 2nd Infantry Division in Korea, and later reassigned to Fort Lewis.

3.  His records indicate he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ):

* On 14 November 1974, while assigned to Fort Lewis for possession of marijuana
* On 9 October 1975, while assigned to the 2nd Infantry Division, Korea for exceeding the posted speed limit
* On 21 December 1976, while assigned to Fort Lewis for failure to go to his appointed place of duty at the time prescribed

4.  On 13 January 1977, the applicant was barred from reenlistment.  The commander cited the above three NJP's and 11 counseling statements as the bases for the bar.

5.  On 27 January 1977, the applicant received a mental status evaluation and the psychiatrist diagnosed him as having a passive-aggressive personality disorder which was manifested by uncooperativeness and failure to accept responsibility for his actions.  

6.  On 1 February 1977, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unsuitability.  The commander stated the proposed action was based on the applicant's character and behavior disorder.  The applicant was advised of his right to have his case considered by a board officers, to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge, or before his case was presented to a board of officers. 

7.  In a Headquarters Fort Lewis (HFL) Form 309, dated 4 February 1977, the applicant stated he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 13 of Army Regulation 635-200.  The applicant requested that his case be considered by a board of officers with a personal appearance.  The applicant chose representation by counsel and elected not to submit statements in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  

8.  On 9 February 1977, the applicant was notified to appear before a board of officers on 25 February 1977 to determine if he should be discharged for unsuitability before the expiration of his term of service.

9.  On 25 February 1977, the applicant appeared before the board and appealed to have the reason and authority for his discharge changed.  His request was based on the argument that he was not unsuitable as evidenced by his service record.  The board of officers recommended that he be discharged from the Army with an honorable discharge certificate.  

10.  On 8 March 1977, the appropriate authority approved the board's recommendation.  Accordingly, the applicant was honorably discharged on 
16 March 1977, by reason of unsuitability - traits of character or behavior disorder.  He had completed 3 years, 9 months, and 12 days of active service and 2 months and 26 days of prior inactive service.  

11.  His records show he applied to the Army Discharge Review Board (ADRB) on 12 December 1979 to have the reason and authority for his discharge changed.  The ADRB found he was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate, therefore, his request was denied.

12.  The applicant submits a copy of a VA certificate for civil service preference, dated 23 April 2009, stating he is in receipt of disability compensation for a service connected disability rated at 30 percent or higher.  The applicant claims to have been diagnosed as having PTSD by the VA on 2 October 2001; however, he has not provided a copy of the decision memorandum. 

13.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  This regulation stated that character and behavior disorders were considered to render an individual administratively unfit rather than unfit because of physical disability.  This regulation also stated that interference with performance of effective duty would be dealt with through appropriate administrative channels.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5b(2), then in effect, provided for the discharge of individuals for unsuitability due to character and behavior disorders when it was determined by medical authority that such disorders were chronic and not responsive to attempts at rehabilitation and interfered with the individual's ability to adequately perform their duties.  

15.  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.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit 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.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his narrative reason for separation should be changed from "unsuitability - traits of character or behavior disorder" to a medical discharge was carefully considered and his contention was found not to be supported by the evidence.

2.  As provided in Army Regulation 40-501, the applicant was determined to be administratively unfit and therefore not unfit due to a physical disability.  He was processed for discharge through the appropriate administrative channels. 

3.  The applicant chose to appear before a board of officers.  The board recommended that he be discharged in accordance chapter 13 of Army Regulation 635-200 due to "unsuitability - traits of character or behavior disorder" with an Honorable Discharge Certificate.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The applicant's narrative reason for separation is appropriate considering all of the facts of the case.  There is no evidence that the applicant had a disability that required processing through medical channels at the time of discharge.

6.  The applicant provided evidence that shows he is receiving service connected disability compensation from the VA.  The fact that the VA in its discretion has awarded him a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish error or injustice in the decision made by the Army.

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)                                         AR20100007791



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ABCMR Record of Proceedings (cont)                                         AR20100007791



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