IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100016172 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to upgrade his Under Other Than Honorable Conditions Discharge to a General Discharge.

2.  He states he received a gunshot wound to his groin during a drive-by shooting in January 1975.  The incident caused him to suffer psychological issues, physical pain and depression.  He contends he was not afforded the opportunity to get the proper counseling because his commander didn’t think it was necessary.

3.  He believed he had no other choice than to go into an absent without leave (AWOL) status in order to get away from the situation.  Upon his return to military control, he was reassigned to another unit where he also encountered trouble receiving the necessary treatment for his depression and was ultimately discharged. 

4.  He provided a copy of the following documentation in support of his request:

* An excerpt from his military medical records
* A Veterans Affairs (VA) Form 10-1000 (Hospital Summary)
* 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.  His record shows he enlisted in the Regular Army on 30 March 1973.  He was initially awarded military occupational specialty (MOS) 13A (Field Artillery Basic) and later awarded MOS 13B (Field Artillery Crewman).    

3.  He provided a copy of an excerpt from his military medical records which contains information pertaining to his gunshot wound.  These documents indicate he received a gunshot wound in January 1975.  The .32 caliber bullet entered his lower right side, resulting in a tear to his bladder.  

4.  On 12 February 1975, he sought follow-up medical care for his wound and reported being depressed.  On 25, 27, and 28 February 1975, he reported pain and bleeding as a result of the wound.  He was prescribed medication and given a profile.  

5.  A copy of his DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 9 May 1975, shows he attempted suicide on 14 April 1975 by ingesting a bottle of serax.  The investigating officer made a determination of “Not in the Line of Duty – Due to Own Misconduct.”  

6.  On 9 May 1975, a psychiatric examination was performed for a Line of Duty Investigation (LODI) for his attempted suicide.  It was noted that the applicant attempted suicide at his local residence because he was so severely depressed and anxious over his marital situation.  He admitted his ingestion of serax was a deliberate attempt to commit suicide.  He was diagnosed with the following:

* Diagnosis 1 (307.3) – Adjustment reaction to adult life
* Diagnosis 2 (316.0) – Marital maladjustment

7.  Headquarters, Fort Carson and 4th Infantry Division, General Court-Martial (GCM) Order Number 75, dated 14 August 1975, shows he was convicted of AWOL; failure to obey a lawful order from a superior commissioned officer; and for communicating a threat to kill a superior commissioned officer.  

8.  The sentence was adjudged on 23 July 1975 and consisted of a bad conduct discharge, eight months confinement and forfeiture of $225.00 pay per month for eight months.  The bad conduct discharge was later suspended.

9.  On 9 December 1975, the findings and sentence were reviewed by the Judge Advocate General (JAG).  The order noted the United States Court of Military Appeals denied the petition of the accused and as a result, the JAG directed the filing of the GCM Order in the performance section of the applicant's Official Military Personnel File.

10.  His record contains a Report of Psychiatric Examination, dated 23 April 1976, which shows he met the retention standards prescribed in Chapter 3, Army Regulation 40-501 (Standard of Medical Fitness).  There was no indication of a psychiatric disease or defect which warranted disposition through medical channels.  This evaluation also noted the following findings:

	a.  Diagnosis 1 (316.1) – Social maladjustment along with his accompanying language and educational factors were the underlying problem with made him less able to successfully deal with diagnosis 2 (In the Line of Duty) and

	b.  Diagnosis 2 (301.3) – Adjustment reaction of adult life, moderate, recurrent, untreated, unimproved:  manifested by marital and work-related problems (In the Line of Duty).

11.  On 3 May 1976, his commander initiated action to separate him under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 13, paragraph 13-5a(1), for misconduct.  He noted the applicant's numerous disciplinary infractions and his conviction by GCM as reasons for the action. 

12.  He acknowledged receipt of the commander’s intent, and along with his acknowledgement he stated he liked the Army but was not able to adjust because of personal business.  He did not agree with the type of discharge, but noted it was the best solution to his problems. 



13.  He was advised by counsel on the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  He waived his right to representation by appointed counsel, waived consideration of his case by a board of officers and a personal board appearance, and elected not to submit a statement on his own behalf.  

14.  On 29 June 1976, the separation authority approved the recommendation for separation and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  

15.  Accordingly, he was discharged on 12 July 1976 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for misconduct.  He served a total of 2 years, 11 months, and 13 days of total active service with 122 days of lost time.

16.  He provided a copy of a VA Form 10-1000 which shows he was admitted to the VA Hospital in San Juan, Puerto Rico on 4 August 1976.  He complained of anxiety, restlessness, and irritability and stated he had difficulty in his interpersonal relationships and adjusting to military life.  He was diagnosed with Undifferentiated type Schizophrenia.  During his hospital stay, he underwent one-on-one, group, and occupational therapies; and was treated with medication.  He was discharged from the hospital on 1 September 1976.

17.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  On 26 September 1983, the ADRB determined the reason for discharge was both proper and equitable and subsequently denied his request. 

18.  Paragraph 3-35 of Army Regulation 40-501 (Standards of Medical Fitness) states that personality and adjustment disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels. 

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

20.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits 


provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Medical evidence of record shows he sustained a gunshot wound to his lower right side in January 1975.  He contends he was severely depressed and was not afforded the opportunity to seek professional counseling for his condition.  

2.  His records show he was given two psychiatric examinations by competent military medical authorities during his military service and was diagnosed with social maladjustment disorder and an adjustment reaction disorder.  Both diagnoses were determined to be in the “Line of Duty."  

3.  He was found fit for retention under the provisions of Army Regulation 40-501 and there was no evidence to show he suffered from any condition severe enough to warrant him being processed through medical channels and as a result, the psychiatrist recommended appropriate command measures as the preferred course of action rather than corrective measures through medical channels.

4.  His commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1), for unfitness.  Accordingly, he met with counsel and was advised of his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The evidence of record shows he was discharged on 12 July 1976 and issued an Undesirable Discharge Certificate under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Therefore, the reason for discharge and the characterization of his service were both proper and equitable.

6.  After a review of his record of service, it is apparent his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant 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)                                         AR20100016172



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ABCMR Record of Proceedings (cont)                                         AR20100016172



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