IN THE CASE OF:	  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110018023 


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 request correction of his records to show he was discharged by reason of disability.  

2.  The applicant states he has service-connected and non-service-connected disability.

3.  The applicant did not provide any 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.  The applicant's records show he was inducted into the Army of the United states on 11 June 1968 and he held military occupational specialty 94B (Cook).  

3.  While in training, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 2 to 10 September 1968.

4.  Also while in training, he was convicted by a special court-martial of one specification of being AWOL from 13 November 1968 to 8 January 1969.  He was sentenced to confinement at hard labor for 5 months and a forfeiture of pay. The convening authority approved his sentence.

5.  Subsequent to completing training, he was placed on assignment to Vietnam but he went AWOL from 6 May 1969 to 10 February 1970.

6.  On 20 February 1970, the applicant underwent a separation physical at Fort Leonard Wood, MO.  He did not claim any injuries or illnesses and indicated he was in good health.  The attending physician noted the applicant was fully qualified for separation.  

7.  On 3 March 1970, his immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) by reason of unfitness citing the applicant’s repeated commission of discreditable incidents with military authorities.  The immediate commander further recommended an Undesirable Discharge Certificate.

8.  On 13 March 1970, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  

9.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers and personal appearance before a board of officers.

10.  On 30 March 1970, he underwent a mental evaluation at Fort Leonard Wood, MO.  The military psychiatrist diagnosed him with a passive-aggressive personality disorder but indicated the applicant:

* Met retention standards of Army Regulation 40-501 (Standards of Medical Fitness)
* He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels
* He was responsible and able to distinguish right from wrong and he had the mental capacity to understand and participate in board proceedings
* He was cleared for any administrative decisions deemed appropriate by his chain of command

11.  On 3 April 1970, his immediate commander initiated separation action against him and recommended the issuance of an Undesirable Discharge Certificate.  

12.  Also on 3 and 4 April 1970, his intermediate and senior commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 27 April 1970, the applicant completed a statement of medical condition. He indicated that there had been no change in his medical condition.

14.  On 16 April 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate.  On 27 April 1970, the applicant was accordingly discharged from the Army.  

15.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 10 months and 9 days of creditable active military service and had 376 days of lost time.

16.  On 20 September 1982, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

17.  On 25 September 2007, the ABCMR denied his petition to upgrade his discharge.

18.  Nothing in his records shows he suffered an illness or an injury or an illness that rendered him unable to perform the duties required of his grade or military specialty or warranted his entry into the physical disability evaluation system.

19.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:

* frequent incidents of a discreditable nature with civil or military authorities 
* sexual perversion 
* drug addiction 
* an established pattern of shirking
* an established pattern showing dishonorable failure to pay just debts

20.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) currently in effect 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501.

22.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention, and separation including retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records reveal an extensive history of indiscipline and/or misconduct including one instance of NJP, one instance of a court-martial, and multiple instances of AWOL.  Accordingly, his chain of command initiated administrative separation action against him.  His discharge was in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Prior to his separation, he underwent a medical and a mental examination 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.  A disability separation requires the presence of impairment (illness or injury) that was incurred while entitled to basic pay and renders a Soldier unable to perform the duties required of his graded and/or specialty.  In each case, it is necessary 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 view of the foregoing evidence, he is not entitled to a medical separation. 

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)                                         AR20110018023





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ABCMR Record of Proceedings (cont)                                         AR20110018023



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