IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022636


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 1972 discharge by reason of unsuitability be changed to a medical discharge.

2.  The applicant states neither his chain of command nor the Judge Advocate General (JAG) Corps officer understood his mental state.  He was merely pushed out of the Army like trash.  He should have been given a medical discharge so he could receive help.

3.  The applicant also states:

* he entered the Army with parental consent
* he entered the Army to train in military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice)
* he was abused by fellow Soldiers and training cadre
* he broke his leg and the Army would not set the fracture
* he was transferred to Fort Eustis, VA, and Fort Rucker, AL, for MOS 67A training, but that training was phased out at those locations
* he was transferred to Fort Dix, NJ, for MOS 36K (Field Wireman) training
* he was transferred to Fort Leonard Wood, MO, for MOS 12A (Combat Engineer) training
* after such a run-around, he mentally lost control and a psychiatrist said he was unable to adapt

4.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a self-authored statement.

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 with parental consent for 3 years and training in MOS 67A on 16 September 1971.  He underwent basic combat training (BCT) at Fort Ord, CA.  He successfully completed BCT on or about 18 November 1971.

3.  In keeping with his enlistment contract, the applicant was transferred to Fort Rucker, AL, for MOS 67A training.  The applicant could not complete the training and had to be reassigned.

4.  The applicant subsequently failed MOS training at the following locations:

* Fort Dix for MOS 36K
* Fort Leonard Wood for MOS 12A

5.  The applicant's records contain two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

	a.  being absent without leave (AWOL) from his unit from 1200-1700 hours, 3 March 1972, for which he received 14 days of restriction.

	b.  being AWOL from his place of duty from 0600-1700 hours, 25 April 1972, and for being AWOL from his unit from 27 April 1972 to 4 May 1972, for which he received a reduction to private (PV1/E-1), forfeiture of $120.00 pay per month for 2 months (suspended until 25 June 1972), and 40 days of restriction and extra duty (with the last 20 days of restriction suspended until 25 June 1972).

6.  On 16 May 1972, the applicant was referred to a psychiatrist who found him to be without mental or physical defects.  However, it was determined he had a character and behavior disorder with distinct violent tendencies.  It was recommended he be administratively separated.

7.  On 2 June 1972, the applicant's commander notified the applicant that he was being processed for elimination under the provisions of Army Regulation 
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  On 6 June 1972, he acknowledged notification after consultation with a JAG officer.  On 16 June 1972, the separation action was forwarded to the approving authority with a recommendation for an undesirable discharge (UD) for unfitness.

8.  On 6 July 1972, the approving authority disapproved a UD for unfitness and, instead, approved a general discharge (GD) for unsuitability.  On 24 July 1972, he was so discharged.

9.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel.  It provided for discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  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 635-212 also set forth the basic authority for the elimination of enlisted personnel for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a medical discharge.

2.  The applicant had a series of incidents of a discreditable nature during his short military service.  It became apparent to his chain of command that he was either unfit or unsuited for military service.  He was therefore processed for elimination under the provisions of Army Regulation 635-212.

3.  As a part of his elimination processing, the applicant was referred to a psychiatrist.  The psychiatrist found him to be free of mental or physical defects, but to have a character and behavior disorder which rendered him unsuited for military service.  He was never referred to the PDES for disability processing.

4.  Although his immediate commanders wanted to eliminate him with a UD as unfit, the approving authority approved elimination with a GD for unsuitability.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the available facts of the case.

6.  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 this requirement.

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)                                         AR20100022636



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ABCMR Record of Proceedings (cont)                                         AR20100022636



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