IN THE CASE OF:	 

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120006898 


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) for the period ending 3 March 1976 by:

* upgrading the characterization of his service from under honorable conditions to honorable
* changing the narrative reason for his separation to medical
 
2.  The applicant states, in effect, he should have been medically discharged from service in 1972 or 1973, for a seizure condition which was diagnosed in Frankfurt, Germany. 

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 enlisted in the Regular Army on 13 December 1971.  He completed training, was awarded military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist), and served in Germany.  On 15 November 1973, he was honorably discharged for immediate reenlistment in the rank/grade of specialist four/E-4.

3.  On 22 July 1975, he entered a guilty plea to civilian charges in Bell County, TX, of operating a motor vehicle on a public highway while under the influence of intoxicating liquor.  He received a fine and probation.  Separation action for unsuitability was initiated on 8 August 1975, then terminated with the recommendation the applicant undergo psychiatric evaluation and seek assistance in coping with the personal problems contributing to his inefficiency.

4.  The applicant was counseled by his chain of command on numerous occasions in reference to his military responsibilities, attitude, drinking, marital problems, and appearance.

5.  On 13 January 1976, the applicant requested to be discharged primarily due to marital problems.  On 14 January 1976, the applicant's unit commander notified him that he was recommending his discharge under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations) by reason of unsuitability.  

6.  On 14 January 1976, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed a statement in which he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge and he elected to submit a statement on his behalf.

7.  On 16 January 1976, he was administered a psychiatric evaluation at Darnall Army Hospital, Fort Hood, TX, which determined the applicant showed no potential for rehabilitation or retention in a military setting.  A direct examination and review of his past history revealed no indications of psychiatric disorder that would prevent his administrative separation.   

8.  The applicant was administered a separation physical on 22 January 1976, at which time he was determined to be physically qualified for separation.  There is no evidence in his available medical records nor did the applicant provide any evidence which shows he suffered from a seizure disorder.

9.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 January 1976, for willfully disobeying a lawful order on 16 January 1976.

10.  On 9 February 1976, the separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsuitability with a general discharge.

11.  On 3 March 1976, the applicant was discharged accordingly.  His DD Form 214 shows he completed 4 years, 2 months, and 21 days of total active service with 10 days of lost time.  His DD Form 214 also shows he was assigned separation program number code JMJ (unsuitability – apathy, defective attitude or inability to expend effort constructively).

12.  On 17 May 1991, the applicant was informed his application to the ABCMR for an upgrade of his discharge was denied.

13.  His complete service medical records are not available for review with this case; however, there is no indication in his military personnel records which shows he suffered from a seizure disorder or any illness or an injury which rendered him unable to perform the duties required of his grade or MOS. 

14.  His post-service records contain several neurology and psychiatric consultation sheets from the Department of Veterans Affairs (DVA) which show the applicant was diagnosed with substance abuse, depression, and seizure disorder.  He was repeatedly tested and treated over the years and it appears at various times he has been rated up to 100 percent disabled for temporal lobe epilepsy.  A current DVA rating decision was not present in the applicant’s records nor did the applicant provide one.    

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  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.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

18.  Chapter 61, Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  

DISCUSSION AND CONCLUSIONS:

1.  Although he contends he should be entitled to an upgrade of his discharge and to change the narrative reason of his discharge to a medical discharge, he did not provide evidence of an unfitting medical condition at the time of his discharge.  There is no evidence in his records and he did not provide any  evidence which shows he was medically disqualified for retention or separation due to a diagnosis of a seizure disorder, which he claims.  Nowhere in his records does it show he suffered an illness or an injury which rendered him unable to perform the duties required of his grade or MOS.  

2.  He contends he had a seizure condition which was diagnosed in 1972 or 1973; however, he was sufficiently fit to reenlist in November 1973.

3.  His record revealed a disciplinary history which included guilty findings of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, and a separate instance of NJP under the UCMJ.  His behavior and failure to respond to counseling led his chain of command to initiate separation action against him. The applicant’s record of indiscipline clearly shows his quality of service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge under these provisions.

4.  His administrative separation was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

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)                                         AR20120006898





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ABCMR Record of Proceedings (cont)                                         AR20120006898



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