IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110013056 


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 under honorable conditions be upgraded or changed to show he was medically discharged.

2.  The applicant states he was affected by Agent Orange in the Republic of Vietnam (RVN).  He now has congestive heart failure and diabetes.  He had surgery on one knee while in the military as well as back problems and post-traumatic stress disorder.  After his service, he had surgery on his other knee and developed hammer toes resulting in operations on both of his feet.  He had been given jobs that aggravated his feet, knees, and back.

3.  The applicant provides no additional evidence.

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.  On 16 February 1967, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 13A (Cannoneer).

3.  The applicant's records show the following:

	a.  He served in the RVN from August 1967 to August 1968 as an ammunition handler with Service Battery, 1st Battalion, 27th Artillery Regiment.

	b.  He was assigned in November 1968 to Fort Sill, Oklahoma, where he was subsequently awarded MOS 72C (Telephone Switchboard Operator).

	c.  He was convicted by three summary courts-martial:

* on 1 October 1968, for willfully disobeying a lawful order to cut his mustache
* on 3 June 1969, for being absent without leave from 23 to 27 May 1969
* on 7 October 1969, for willfully disobeying a lawful command to sign in with the charge of quarters every hour

	d.  He was given a psychiatric evaluation on 8 and 9 September 1969.  There was no evidence of any neuropsychiatric disease.  He was found mentally responsibility and able to distinguish right from wrong and to adhere to the right.  The applicant's mood was neutral, his affect was appropriate.  There was no gross evidence of delusions, hallucinations, disorders of perception, or a thought disorder.  His memory was intact, his intelligence seemed average, and his judgment was adequate, but he had little insight into his behavior.

	e.  He was convicted by special court-martial on 8 December 1969 for willfully disobeying a lawful order to open his duffle bag for inventory.

	f.  On 12 February 1970, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to unfitness and issued an Undesirable Discharge Certificate.

4.  On 30 June 1978, the Army Discharge Review Board affirmed the applicant's upgrade of his characterization of service based on Public Law 95-126 and a determination that a change in characterization was warranted.

5.  The applicant was subsequently reissued a DD Form 214 (Report of Separation from Active Duty).  His character of service is shown as under honorable conditions.  The reason for his discharge is shown as an established pattern of misconduct for shirking.

6.  The applicant's service medical records are not available for review.

7.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides that 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.

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

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of his or her physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under honorable conditions should be upgraded to honorable due to medical reasons because his health was affected by exposure to Agent Orange in the RVN.

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.

3.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.  A subsequent change in law provided for a review of his discharge resulting in an upgrade of his characterization of service.   However, this action did not affect the reason for his discharge which was due to misconduct.

4.  There is no available evidence showing the applicant suffered from a severe mental or physical illness at the time of his discharge or that any such illness was the direct cause of the misconduct that led to his discharge.  Accordingly, there is no basis for a medical retirement or separation.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20110013056



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013056



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1