IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110023412 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he received a medical discharge. 

2.  The applicant states his DD Form 214 shows he received an undesirable discharge.

3.  The applicant provides his DD Form 214.

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 enlisted in the Regular Army for 3 years on 25 April 1969.  He was subsequently assigned to Fort Knox, KY, for completion of training.

3.  On 22 July 1969, he departed his training unit in an absent without leave (AWOL) status and on 20 August 1969, he was dropped from the Army's rolls as a deserter.  He ultimately returned to military control on 11 September 1969.

4.  On 17 September 1969, he again departed his unit in an AWOL status and he returned on 12 November 1969.

5.  On 17 December 1969, he departed his unit in an AWOL status and he returned on 2 January 1970.

6.  On 27 January 1970, the applicant underwent a mental status evaluation that determined he:

   a.  Had no mental defects sufficient to warrant separation under Army Regulation 635-40 (Physical Evaluation for Retention, Separation, or Retirement for Physical Disability).

   b.  Was mentally responsible and able to distinguish right from wrong and he had the mental capacity to participate in board proceedings.
   
   c.  Had a severe passive-aggressive personality disorder manifested by impulsivity, anti-social behavior, AWOL, and anxiety traced back to his childhood.

   d.  He should be separated administratively under an appropriate regulation.

7.  On 2 February 1970, he underwent a separation medical examination at Fort Leonard Wood, MO.  He was found medically qualified for separation.

8.  On 4 March 1970, he was convicted by a special court-martial of two specifications of being AWOL from 22 July to 11 September 1969 and 
17 September to 12 November 1969.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of $82.00 pay for 3 months.

9.  On 6 March 1970, the convening authority approved the sentence, but suspended the confinement for a period of 5 months.

10.  On 17 February 1970, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations) for unfitness.  He recommended that the applicant be issued an Undesirable Discharge Certificate.

11.  On 17 February 1970, the applicant acknowledged receipt of the separation notification and the issuance of an undesirable discharge.  He 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.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.  He waived consideration of his case by a board of officers and appearance before a board of officers and he elected not to submit a statement on his own behalf.

12.  On 13 March 1970, the applicant's immediate commander initiated separation action against the applicant for unfitness. 

13.  On 18 March 1970, the applicant's senior commander recommended approval of the separation action with the issuance of an Undesirable Discharge Certificate.

14.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge and ordered him discharged from the Army under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 6 April 1970.  His DD Form 214 shows he completed a total of 6 months and 11 days of creditable active military service and he had 156 days of lost time.

15.  On 29 December 1976, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

16.  There is nothing in the applicant's records to show that he suffered from an illness or an injury 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.

17.  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

18.  The above regulation also stated that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

19.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7a 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.

20.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

21.  Army Regulation 635-40 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 a history of misconduct including a court-martial conviction for 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.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  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.
 
3.  Prior to separation the applicant underwent a medical examination and a mental status evaluation and he was found medically qualified for separation.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention.  

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)                                         AR20110023412



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ABCMR Record of Proceedings (cont)                                         AR20110023412



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