IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110009399 


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 general discharge be changed to a medical discharge.

2.  The applicant states he should have received a medical discharge because his medical records show that he suffered from depression and attempted suicide prior to his discharge from the military.  The applicant states he was young and immature at that time and did not know any better.  For years the Army failed to inform him of his rights or diagnose his condition.  The applicant concludes that he has a claim for post-traumatic stress disorder (PTSD) with the Department of Veterans Affairs (VA).

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 2 January 1970
* five Standard Forms 600 (Chronological Record of Medical Care), dated 11 November 1969 through 17 November 1969
* a Standard Form 513 (Consultation Sheet), dated 12 November 1969
* VA request for information

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 20 June 1968.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).

3.  On 16 December 1968, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failure to perform his duties while on guard.

4.  On 30 July 1969, the applicant was convicted by a summary court-martial of stealing an M-16A1 rifle.

5.  The applicant provided five Standard Forms 600 that show between 11 and 20 November 1969:

* he was in at least two fights, one with military police
* he was treated at his battalion aid station for lacerations to his chest
* he took an overdose of pills – tried to commit suicide
* admitted to hospital – thinks he's going to a mental institution
* a provisional diagnosis of acute depression, immature personality – multiple problems
* mental status evaluation showed no evidence of psychosis or organic brain disease and indicated an impression of depressive reaction with suicidal attempt

6.  The evidence of record shows the applicant was absent without leave (AWOL) from 9 through 11 November 1969 and 20 through 25 November 1969.

7.  The applicant underwent a command-referred psychiatric evaluation by a military psychiatrist who diagnosed the applicant with a "character and behavior disorder."  The military psychiatrist determined the applicant could distinguish right from wrong and adhere to the right, there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels, and the applicant had the mental capacity to understand and participate in board proceedings.

8.  On 26 November 1969, the applicant's commander initiated a request to discharge the applicant for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability).  The commander cited the applicant's lack of ability to adapt to different situations and sudden emergence of a character disorder that contributed to his lack of adaptability.

9.  On 9 December 1969, the applicant consulted with counsel.  He was advised of his rights and the effect of a waiver of those rights and was also advised of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated he was counseled by appropriate counsel, he waived consideration of his case by a board of officers, he did not provide statements in his own behalf, and he waived representation by military counsel.

10.  On 15 July 1970, the appropriate authority waived rehabilitation reassignment and approved the applicant's discharge under the provisions of Army Regulation 635-212 under separation program number 46A for unsuitability, apathy, defective attitudes, and inability to expend effort constructively.  On 22 July 1970, he was discharged by reason of unsuitability with an under honorable conditions character of service after completing 1 year, 6 months, and 13 days of creditable active service with 9 days of lost time due to AWOL.

11.  There is no evidence that shows he was diagnosed with PTSD or any mental condition prior to his discharge sufficient to warrant disposition through medical channels.

12.  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.

13.  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.  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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed 1 year, 6 months, and 13 days of creditable active service with 9 days of lost time.  The applicant's records show he received one Article 15, he was convicted by a summary court-martial, and had two periods of AWOL during his enlistment.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  Although the applicant contends he should have been given a medical discharge, the evidence of record shows he was administratively separated for apathy.  There is no medical evidence of record that shows he had any mental or medical condition prior to his discharge on 2 January 1970 that would have rendered him eligible for physical disability processing.  The military psychiatrist found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and the applicant had the mental capacity to understand and participate in board proceedings.

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)                                         AR20110009399



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ABCMR Record of Proceedings (cont)                                         AR20110009399



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