IN THE CASE OF:
BOARD DATE: 7 December 2010
DOCKET NUMBER: AR20100014491
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 his general discharge be corrected to a medical discharge.
2. The applicant states that when he enlisted his physical examination showed he was psychiatrically normal. A year, 2 months, and 6 days later he was diagnosed with severe psychiatric problems to include depression and suicidal ideation. He should have been given a medical discharge, but he was too young to know that at the time.
3. The applicant does not provide any additional documents.
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 records show he enlisted in the Regular Army on 23 June 1972 and was awarded the military occupational specialty of cook.
3. In conjunction with his enlistment he was administered a physical examination which showed no psychiatric problems.
4. On 15 February 1973, the applicant sustained a head injury which resulted in a temporary loss of memory. An investigation failed to reveal how he was injured.
5. On 26 June 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 7 to 25 June 1973.
6. On 12 October 1973, the applicant was given a psychiatric evaluation which states the applicant had severe character and behavior disorder, but met medical retention criteria. The physician continued that the applicant had a history of not being able to conform to authority. He was unable to cope with the stresses of the military and would continue to be a disciplinary problem and an AWOL risk. The physician diagnosed the applicant with a severe passive-aggressive personality and drug misuse, multi-drugs.
7. In an undated letter the applicant's commander notified him of his intent to recommend his discharge due to unsuitability and of his rights in conjunction with that recommendation. The applicant waived his rights.
8. On 23 October 1973, the applicant's commander recommended the applicant's discharge for unsuitability. That recommendation was approved by the appropriate authority.
9. Accordingly, on 30 October 1973 the applicant was given a general discharge by reason of unsuitability. He had 63 days of lost time.
10. Army Regulation 635-200 (Enlisted Separations) sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unsuitability based on personality disorders (not amounting to a disability, a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform). Prior counseling with a view to correcting deficiencies was mandatory.
A diagnosis by a psychiatrist was required. 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.
11. 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 a medical evaluation board (MEB).
Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. Those Soldiers determined physically unfit are either continued on active duty, discharged with severance pay, or placed on the Retired List due to physical unfitness.
DISCUSSION AND CONCLUSIONS:
1. The applicant did not admit to having any psychiatric problems when he enlisted.
2. He was diagnosed with a severe passive-aggressive personality and drug misuse, multi-drugs. At the time of that diagnosis, he was determined to be medically qualified for retention.
3. Since the applicant was medically qualified for retention, he was properly not referred to an MEB. Since he wasn't considered by an MEB, he could not have been considered by a PEB. Since he could not be considered by a PEB, he could not have been medically discharged.
4. The applicant was properly processed for unsuitability. As such, there is no basis to grant the applicant's request.
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 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) AR20100014491
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