IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110024802 


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 change of his general discharge to a medical discharge.

2.  The applicant states he was suffering from mental illness (depression and schizophrenia).  It has taken all this time to request a change due to his mental illness.  He believed everything was normal when it was not.

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.  The applicant was inducted into the Army of the United States on 9 November 1971 in pay grade E-1.  He did not complete advanced individual training for award of a military occupational specialty.

3.  He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 5 January 1972 for being absent without leave (AWOL) from 2-3 January 1972
* 12 January 1972 for being AWOL from 8-9 January 1972

4.  He was advanced to pay grade E-2 on 9 March 1972.

5.  On 27 April 1972, he was convicted by a summary court-martial of one specification of being AWOL from 3 to 18 April 1972.  He was sentenced to restriction and a forfeiture of pay.  His sentence was adjudged and approved on the same day.

6.  On 29 June 1972, the applicant's company commander notified him of the proposed action to effect his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability.  The applicant was advised of his rights.

7.  After consulting with counsel, the applicant acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.  He acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He also understood that as the result of an undesirable discharge under conditions other than honorable, he may be ineligible for any or all benefits as a veteran under both Federal and State laws.

8.  On 3 July 1972, the company commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-212 by reason of unsuitability with a General Discharge Certificate.  The commander stated the reasons for the recommended action was the applicant exhibited a strong resentment for authority and was extremely hostile.  He lacks motivation and is very immature.  He is a constant disruptive force and influence in the company.  He has no aptitude for military service and no desire to serve his country.  Further training of the applicant would be of no value.

8.  On 5 July 1972, the applicant's intermediate commander recommended approval of the separation action with a general discharge.  The commander stated the applicant's past record clearly indicated he was unsuitable for continued military service by reason of his attitude and emotional immaturity.

9.  On 7 July 1972, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed the issuance of a General Discharge Certificate.

10.  His record does not contain a copy of his separation mental evaluation.  There is no evidence of record and the applicant did not provide any evidence that shows he was diagnosed with a mental condition prior to his discharge.

11.  On 9 August 1972, the applicant was discharged under the provisions of Army Regulation 635-212 for unsuitability with issuance of a General Discharge Certificate.  He was credited with completing 7 months and 24 days of net active service and 38 days of time lost.

12.  There is no evidence he submitted a request to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and
(6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

14.  Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness was of such a degree that a Soldier was unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge should be changed to a medical discharge has been carefully considered.  However, the evidence of record shows he was punished twice under Article 15 and convicted by a summary court-martial, all for periods of AWOL.  His intermediate commander determined he should be eliminated from the service for unsuitability due to his attitude and emotional immaturity.

2.  The record does not contain a copy of his separation mental evaluation or any evidence that shows he was diagnosed with a mental condition during his period of service.  The record also shows that after consulting with counsel, he acknowledged the proposed separation action for unsuitability.  He waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged the effects of his discharge in civilian life.  He did not mention any mental or medical conditions he was experiencing.  He was discharged accordingly.

3.  There is an absence of evidence to support his contentions for entitlement to a medical discharge.  There is no evidence he was found to be unfit by reason of physical disability during his period of active duty.

4.  He has submitted neither evidence nor a convincing argument to show he had any medical conditions that would have amounted to a disability separation under the provisions of Army Regulation 635-40.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110024802



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ABCMR Record of Proceedings (cont)                                         AR20110024802



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