BOARD DATE:	  14 June 2001

		DOCKET NUMBER:  AR20100022904 


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 records to show he was medically discharged.

2.  The applicant states he had a finger removed from his right hand and had mental problems.  He contends that at the time of the amputation, he was on leave and still on active duty and he was denied a medical discharge because of his age.  The incidents took place when he had just turned age 18 and he was in shock and not able to function or think properly.  He did not receive help from the Army and was kicked around for years and given an undesirable discharge instead.  

3.  The applicant provides a Standard Form 600 (Chronological Record of Medical Care) and a DA Form 3349 (Medical Condition – Physical Profile Record).

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 on 14 February 1969.  Upon completion of initial entry training, he was awarded military occupational specialty 36K (Wireman).

3.  His records contain a Standard Form 513 (Clinical Record – Consultation Sheet) that shows he suffered a blast-type injury to his hand in May 1970 and confirms his contention that he had the middle finger of his right hand amputated.  He also provided a DA Form 3349, dated 28 February 1972, that shows he was found to be medically qualified for duty with permanent limitations.

4.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) on seven occasions totaling 1,413 days of lost time.  The period of his first AWOL offense is listed as 12 May-9 June 1970.

5.  On 13 September 1974, he was advised that he was being recommended for separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, paragraph 13-5a, for unfitness.

6.  On 16 September 1974, he completed a mental status evaluation and was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He was found to meet retention standards per Army regulations.

7.  On 16 September 1974, he 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 elected not to submit a statement in his own behalf.

8.  On 4 October 1974, the appropriate authority approved the recommendation for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 17 October 1974, he was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 8 months, and 22 days of creditable active service and accrued 1,413 days of lost time.

9.  There is no evidence in his official military personnel file (OMPF) showing he was ever referred to a medical evaluation board or a physical evaluation board for consideration of any unfitting medical condition.

10.  He petitioned the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge.  On 2 November 1982, the ADRB concluded his discharge was proper and equitable and denied his request.

11.  Army Regulation 635-200, chapter 13, in effect at the time, established the policies and provided procedures and guidelines for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 13-5a(1) applied to separation for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.

12.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show his separation was based on medical reasons has been carefully considered.

2.  The evidence of record shows he was discharged for unfitness.  The evidence of record also shows he suffered an injury in or around May 1970.  His DA Form 20 shows he was AWOL during the period 12 May-9 June 1970.

3.  The DA Form 3349 shows that on 28 February 1972 he was found to be medically qualified for duty.  There is no evidence in his OMPF and he provided none showing he suffered an unfitting injury in the line of duty that required separation through medical channels.

4.  The evidence of record confirms that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100022904



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ABCMR Record of Proceedings (cont)                                         AR20100022904



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