BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110022351 


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 his undesirable discharge be changed to a medical discharge.

2.  The applicant states:

* he was too young and scared and didn't know how to cope with it
* he is 61 years old now and has not had any benefits at all to help him with his medical problems

3.  The applicant provides a Certification of Military Service.

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 born on 16 April 1950.  He enlisted in the Regular Army on 31 October 1967 for a period of 2 years at 17 years of age.

3.  While in basic combat training, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 9 January 1968 to 13 January 1968.

4.  On 8 March 1968, he was convicted by a special court-martial (SPCM) of two specifications of being AWOL from 18 January 1968 to 20 January 1968 and from 22 January 1968 to 15 February 1968.

5.  On 8 April 1968, he was found qualified for separation with a physical profile of "111111."

6.  On 23 April 1968, the unit commander initiated action to separate the applicant for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The commander cited:

* the applicant's NJP and SPCM conviction
* the applicant requested elimination
* the applicant is immature and stated he enlisted to avoid reform school
* the applicant is not worth the Army's time

7.  On 24 April 1968, he consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him.

8.  On 8 May 1968, the separation authority approved the recommendation for separation and directed the issuance of an undesirable discharge.

9.  On 15 May 1968, he was issued an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had 90 days of lost time.

10.  There is no DD Form 214 available, but he provided a Certification of Military Service that shows his service was terminated by an undesirable discharge.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) 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.

12.  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 physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

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

14.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was too young and scared and didn't know how to cope with it.  However, age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  He contends he has not had any benefits to help him with his medical problems.  However, a discharge is not changed for the purpose of obtaining veterans' medical benefits.

3.  The evidence of record shows he was found to be physically qualified for separation on 8 April 1968 with a physical profile of "111111."

4.  There is no evidence to show the applicant could not perform his duties while on active duty.  Therefore, there is insufficient evidence to show a medical discharge was warranted.

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)                                         AR20110022351



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ABCMR Record of Proceedings (cont)                                         AR20110022351



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