IN THE CASE OF:	

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100028754 


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 reconsideration of his earlier request to upgrade his undesirable discharge.  He also requests a medical discharge, which is a new issue.

2.  He requested his undesirable discharge be upgraded.  This issue was previously considered by the Army Board for Correction of Military Records (ABCMR) on 26 April 1995 per Docket Number AC93-11075 and denied.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicant's request and determined that his request was not received within 1 year of the ABCMR's original decision.  Records also show requests for reconsideration were: administratively closed on 20 July 2006, denied by the Board on 24 June 2008, and denied by the Board on 24 March 2009.  As a result, his request pertaining to this issue does not meet the criteria for reconsideration.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant states:

* as a Soldier he was unwilling to respond to rehabilitation efforts
* it was improper not to send him to a Department of Veterans Affairs hospital prior to separation
* he was coerced into signing the amnesty and rehabilitation waiver 

4.  The applicant provides:

* Three applications
* Amnesty and rehabilitation waiver
* Documentation on rehabilitation measures
* Mental status evaluation
* Discharge proceedings
 
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 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.  He enlisted in the Regular Army on 15 October 1970.  He completed his training and was awarded military occupational specialty 63B (Wheel Vehicle Repairman).  

3.  He received nonjudicial punishment (NJP) on 2 occasions for failing to repair and being absent without leave (AWOL) for a 10-day period.

4.  He was convicted by a summary court-martial of two specifications of assault, of being drunk and disorderly in a public place, and of resisting arrest. 

5.  On 13 September 1973, he underwent a mental status evaluation and was found mentally responsible.  No significant mental illness was noted.   

6.  On 13 September 1973, he underwent a separation physical examination and was found qualified for separation.  He also reported he was in good health on his Standard Form 88 (Report of Medical Examination). 

7.  On 20 September 1973, he was advised if he were a drug experimenter, drug user, or drug addict, he could request amnesty and rehabilitation under the provisions of Army Regulation 600-32.  He was advised if he participated in the program he would not be subjected to punitive action, including discharge under other than honorable conditions, solely for drug abuse.  He waived such amnesty and rehabilitation and indicated he did not wish to participate in the Fort Riley Drug Rehabilitation Program.   

8.  On 15 October 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness with an undesirable discharge.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) provided for the separation of enlisted personnel for unfitness.  Individuals separated by reason of unfitness were normally furnished an undesirable discharge at the time.

10.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was unwilling to respond to rehabilitation efforts; he was coerced into signing the amnesty and rehabilitation waiver.  On 20 September 1973, he waived amnesty and rehabilitation and indicated he did not wish to participate in the Fort Riley Drug Rehabilitation Program; however, there is no evidence he was coerced into signing the waiver.   

2.  He contends he should have been medically discharged.  However, no evidence shows he was having medical or mental problems in 1973 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.  Medical evidence shows he was found qualified for separation on 13 September 1973 and he reported he was in good health.  He was also found mentally responsible and no significant mental illness was noted on 13 September 1973.  Therefore, there was no basis for a medical discharge. 

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)                                         AR20100028754



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ABCMR Record of Proceedings (cont)                                         AR20100028754



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