IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110005542 


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 that his undesirable discharge be upgraded to a general discharge or that his discharge be changed to show he was discharged by reason of service-connected physical disability.

2.  The applicant states that his discharge should be upgraded because had a previous honorable discharge and he was suffering from a mental illness (paranoid schizophrenia); however, the Army discharged him rather than treating him.

3.  The applicant provides a two-page letter of explanation, copies of documents from his medical and personnel records, and copies of his DD Forms 214 (Armed Forces of the United States 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.  The applicant enlisted in the Regular Army in Los Angeles, California, on 14 June 1966 for a period of 3 years and training as a communications center specialist.

3.  He completed basic training at Fort Bliss, Texas, and advanced individual training at Fort Gordon, Georgia, before being transferred to Fort Buckner, Okinawa, on 22 March 1967 for assignment to the Signal Company, 1st Special Forces Group, as a communications center specialist.  He was advanced to pay grade E-4 on 13 April 1968.

4.  On 26 April 1968, he reenlisted for a period of 6 years and a variable reenlistment bonus.  He departed Okinawa on 21 September 1968 for assignment to Fort Bragg, North Carolina.

5.  On 12 December 1968, nonjudicial punishment was imposed against him for failure to properly secure his assigned weapon.

6.  On 27 February 1969, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 6 February to 17 February 1969.

7.  On 17 June 1969, he was convicted by a special court-martial of being AWOL from 6 May to 19 May 1969.

8.  On 11 March 1970, he was convicted by a special court-martial of being AWOL from 4 August to 2 December 1969, from 7 December 1969 to 13 January 1970, and from 15 January to 15 February 1970.  He was sentenced to confinement at hard labor for 5 months at the Fort Ord, California, post stockade.

9.  On 2 March 1970, he underwent a psychiatric evaluation while in the stockade.  The evaluation noted the applicant stated he faked a nervous breakdown in hopes of getting out of the Army with a medical discharge.  The applicant requested "to return to stockade because it's too difficult to maintain pretense of being crazy."  He was diagnosed as having a sociopathic personality that existed prior to service.  The examining psychiatrist stated there was no evidence of mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  On 23 April 1970, he was convicted by a special court-martial of disobeying a lawful order while in the stockade.  He was sentenced to confinement at hard labor for 6 months.

11.  The complete facts and circumstances surrounding his administrative discharge are not present in the available records.  However, the available records show the applicant's commander initiated action on 6 May 1970 to discharge him from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  The appropriate authority (a major general) approved the recommendation on 21 May 1970 and directed issuance of an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions on 25 May 1970 under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He completed 1 year and 2 months of active service during his current enlistment and had 330 days of lost time due to AWOL and confinement.  He completed a total of 3 years and 12 days of active service during his two enlistments.

13. On 13 April 1972, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and he contended at that time that he should have received psychiatric help from the Army rather than being discharged.  After reviewing the facts and circumstances in the applicant's case, the ADRB determined his discharge was both proper and equitable and voted to deny his request on 20 March 1973.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

16.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness).  Those determined medically disqualified are referred to a physical evaluation board to determine if they can perform their duties with the disqualifying medical condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been considered by the Board; however, they are not sufficiently mitigating when compared to his overall undistinguished record of service and his repeated misconduct.

2.  The applicant underwent a separation physical and he was found medically qualified for separation.  There is no evidence in his records and he did not provide substantiating evidence that shows he was medically disqualified for retention.

3.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to first have a finding of medical disqualification and then to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant's rights.

5.  Accordingly, the type of discharge directed and the reasons appear to be appropriate considering all of the 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 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)                                         AR20110005542



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ABCMR Record of Proceedings (cont)                                         AR20110005542



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