BOARD DATE:	 31 May 2011 

		DOCKET NUMBER:  AR20100027636 


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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* At the age of 14 he was struck in the head and received 284 stitches
* He was paralyzed on the left side and bed ridden for about 2 years
* His doctors told him he had a traumatic brain injury which among other things causes pent up anger and bouts of rage
* In 1980 he was diagnosed with Post Traumatic Stress Disorder as a result of a traumatic brain injury when he was 14 years old
* Unknowingly he entered the military with a mental disorder
* His bad conduct during his military service was due to his mental illness

3.  The applicant provides:

* Medical records
* A recommendation for elimination, dated 20 November 1967
* DD Form 214 (Report of Transfer or Discharge)

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 military records are not available for review.  However, this case is being considered using reconstructed records which primarily consists of the records provided by the applicant.

3.  His DD Form 214 shows he enlisted in the Regular Army on 16 November 1965 for a period of 3 years.  He was awarded military occupational specialty 94B (cook).  

4.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.

5.  He provided a recommendation, dated 20 November 1967, for his elimination from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6a(1). 

6.  His DD Form 214 shows he was discharged on 2 January 1968 with an undesirable discharge under the provisions of Army Regulation 635-212 under separation program number (SPN) 46A for unsuitability, apathy, defective attitudes, and inability to expend effort constructively.  He completed 1 year, 4 months, and 29 days of total active service with 258 days of time lost.  His DD Form 214 also shows he was separated on temporary records and a Soldier's affidavit.

7.  There is no evidence that shows he was diagnosed with PTSD or any mental condition prior to his discharge.

8.  He provided medical records, dated 2005 and 2010, which show he was diagnosed with PTSD. 

9.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he unknowingly entered the military with a mental disorder and his bad conduct during his military service was the result of his mental illness.  However, no evidence shows he was diagnosed with any mental condition prior to his enlistment or discharge.  No evidence shows he was having mental problems in 1967 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.

2.  In the absence of evidence to the contrary and at this late date, it must be presumed his separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting 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 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)                                         AR20100027636





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ABCMR Record of Proceedings (cont)                                         AR20100027636



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