IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110004003 


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, in effect, that the records of her husband, a deceased former service member (FSM), be corrected to reflect a medical discharge versus an under honorable conditions discharge.

2.  The applicant states, in effect, the FSM returned from Vietnam addicted to heroin and was diagnosed with drug dependency and chronic undifferentiated schizophrenia. 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* copy of Death Certificate
* Certificate of Prison Discharge
* 21 pages of the FSM's medical history

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, and 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 FSM was inducted into the Army of the United States on 29 January 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver).  He also served in MOS 11B (Light Weapons Infantryman).  The highest rank he attained was private first class (PFC)/E-3.

3.  Records show the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on          22 October 1970, for disobeying orders and striking a superior.

4.  Record show the applicant went AWOL on 7 September 1971 and he was dropped from Army rolls on 6 October 1971 and reported in a desertion status.

5.  Clinical records show that on 7 November 1971 the FSM was admitted to the hospital after applying for amnesty in Vietnam.  Clinical records state the FSM used heroin intravenously while in Vietnam.  He was diagnosed with drug dependency due to being on heroin, chronic undifferentiated schizophrenia manifested with auditory hallucinations, chronic anxiety, and minor thought disorder which was characterized by loose associations.

6.  Medical records state the FSM's medical condition was not considered to be in the line of duty and his condition was due to his own misconduct. 

7.  On 16 November 1971, the FSM was released from active duty under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 5, and transferred to the U.S. Army Reserve (USAR) with a general discharge.  His DD Form 214 also shows the applicant was a "member of a medical holding detachment or units who, upon completion of hospitalization, do not, intend to immediate reenlist or reenlistment in the Regular Army."

8.  Orders, dated 17 November 1971, indicate the FSM appeared before a Physical Evaluation Board (PEB) and he was reassigned to a Veterans Administration (VA) Hospital, Atlanta, GA, effective the same date, to await further orders in connection with PEB proceedings.  The results of the PEB are not available for review in this case.

9.  On 23 December 1975, the FSM received a general discharge from the USAR with an effective date of 1 January 1976.  The reason for the discharge was expiration term of service (ETS).

10.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 5-19 provides that commanders are authorized to order enlisted personnel not serving in a Reserve status, for separation for the convenience of the Government.  Enlisted personnel will be separated and ordered to active duty for training under the Reserve Enlistment Program of 1963 and assigned to medical holding detachments.  Any enlisted person assigned to a medical holding detachment who signifies he does not intend to reenlist may be separated upon completion of hospitalization provided he has less than three months prior to ETS.  The SPN code of 412 for separation will be included in directives or orders directing individuals to report to the appropriate transfer activity for discharge or release from active duty as appropriate.

11.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.  The disability must not have been incurred during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the FSM's DD Form 214 be corrected to reflect a medical discharge versus a general discharge was carefully considered and determined to lack merit.

2.  The available evidence shows the FSM underwent a PEB for drug dependency due to heroin use, chronic undifferentiated schizophrenia manifested with auditory hallucinations, chronic anxiety, and minor thought disorder which was characterized by loose associations.  The results of the PEB are not available for review.  However, the applicant was discharged due to ETS.  It is reasonable to conclude the PEB found the FSM's condition was a result of his heroin use.

3.  Records clearly show the FSM was treated for heroin dependency and suffered medical issues as a result of illegal drug use.  However, these self-inflicted medical conditions do not warrant a medical discharge because they were not incurred in the line of duty.

4.  Based on the foregoing, there is insufficient evidence to grant the applicant's request to amend the FSM's records to show he was medically discharged.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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)                                         AR20110004003



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ABCMR Record of Proceedings (cont)                                         AR20110004003



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