BOARD DATE:	   27 October 2011

		DOCKET NUMBER:  AR20110009981 


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, upgrade of his discharge from general under honorable conditions to honorable. 

2.  The applicant states he was in trouble due to his nerves.  He states the severity of his mental issues resulted in his eventual breakdown and hospitalization at Walter Reed Army Medical Center.  He concludes by stating the Department of Veterans Affairs (VA) rates him as 100 percent (%) disabled. 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a letter from the VA dated 18 April 2011.

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 was inducted into the Army of the United States on 13 October 1969.  His records show he did not complete his training; however, his DD Form 214 shows he held military occupational specialty 57A (Duty Soldier).  The highest rank/grade he held was private (PV1)/E-1.

3.  His records show he was reported as absent without leave (AWOL) or in confinement on numerous occasions as noted:

* AWOL from 15 November 1969 to 15 November 1969 (1 day)
* AWOL from 21 November 1969 to 15 December 1969 (25 days)
* AWOL from 19 December 1969 to 13 March 1970 (85 days)
* AWOL from 25 March 1970 to 22 May 1970 (59 days) 
* AWOL from 27 March 1972 to 28 December 1972 (277 days)
* Confinement from 6 January 1973 to 9 January 1973 (4 days)
* AWOL from 18 February 1973 to 11 July 1973 (144 days)

4.  At a special court-martial at Fort Belvoir, VA, he pled guilty to 3 specifications of a single charge of AWOL.  On 18 April 1970, the Court found him guilty of all specifications and the charge, and sentenced him to confinement at hard labor for 4 months and forfeiture of $25.00 pay per month for 4 months.

5.  On 26 October 1973, a medical evaluation board (MEB) convened at Walter Reed Army Medical Center, Washington, DC, to evaluate the applicant's diagnosed condition of "schizophrenia, paranoid type, severe, chronic, in partial remission," which was determined by the MEB to have existed prior to service (EPTS).  The applicant was referred to a Physical Evaluation Board (PEB).   His DA Form 8-118 (Medical Board Proceedings) shows:

* he initialed the "Does Not" block in item 24, indicating he did not desire to remain on active duty
* he authenticated this form by signing at item 36 

6.  On 3 December 1973, he requested expeditious discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), based on the findings and recommendations of an MEB that he was unfit for retention in the military service, by reason of physical disability, which had been found to have been EPTS.  

7.  In his application for expeditious discharge, he acknowledged that he was informed and fully understood that he was entitled to the same consideration and processing as any other member of the Army who is separated for physical disability.  He stated his understanding that this included consideration of his case by the adjudicative system established by the Secretary of the Army for processing disability separations; however, he elected not to exercise this right.  He also acknowledged that his entitlement to VA benefits would be determined by the VA, and that he would be separated by reason of physical disability (EPTS) and would receive a discharge commensurate with the character of his service.  

8.  On 6 December 1973, he was discharged under the provisions of Army Regulation 635-40, chapter 9 (Expeditious Discharge for Disabilities Existing Prior to Service).  His DD Form 214 shows he completed 2 years, 6 months, and 3 days of total active service, and had 595 days of lost time.  Additionally, this form shows in:

* Item 9c (Authority and Reason), he was assigned Separation Program Designator (SPD) code 277
* Item 9e (Character of Service), he received an under honorable conditions characterization
* Item 9f (Type of Certificate Issued), he was issued a DD Form 257A (General Discharge Certificate) 

9.  The applicant submitted a VA summary of benefits letter, dated 18 April 2011, which shows he was awarded a 100% service-connected disability rating based on his identified disability (schizophrenia, chronic, undifferentiated type).  

10.  Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), Appendix (Separation Program Designators and Authority Governing Separations), in effect at the time, shows SPD 277 corresponded to a discharge involving physical disability that existing prior to service, established by a medical board, and the individual made application for discharge by reason of physical disability (without entitlement to severance pay).  The regulatory authority for such discharges was Army Regulation 635-40, chapter 9. 

11.  Army Regulation 635-40, chapter 9, provides for the discharge of enlisted personnel who in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), are unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.  Paragraph 9-6 states when the findings and recommendations of the medical board that a member should be separated under this chapter have been approved and the member has submitted the required application for separation, the application and medical 

board will be forwarded to the member's commanding officer who will promptly refer the case to the separation authority for discharge of the member.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because of his mental condition at the time of his discharge.  The evidence of record shows that an MEB found him unfit for retention by reason of physical disability that existed prior to service.  He concurred with the approved board findings and requested an expeditious discharge in accordance with Army Regulation 635-40, chapter 9.  He elected not to have his case referred to a PEB.  His request was approved and he was honorably discharged on 6 December 1973.

2.  The evidence of record further shows he acknowledged, in his request for expeditious discharge, that he would receive a discharge commensurate with the character of his service.  The evidence of record shows he was AWOL on numerous occasions and he was tried and convicted by a special court-martial.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his general 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)                                         AR20100030150



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ABCMR Record of Proceedings (cont)                                         AR20110009981



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