IN THE CASE OF:	

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120006993 


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 an upgrade of his general discharge under honorable conditions to fully honorable.

2.  The applicant states:

* he injured his back while attending basic training at Fort Ord, CA
* while attending advanced individual training at Fort Sill, OK, he found he could not stand in formation for long periods of time
* upon being assigned to his first duty station at Fort Lewis, WA, he was admitted to the hospital, placed in traction, and told he had a fractured vertebra
* after being released by the hospital, he was placed on bed rest, but his first sergeant (1SG) assaulted him, kicking him out of bed and further injuring his back
* following this incident, the doctors at Fort Lewis wanted to do exploratory surgery to find out what was wrong with his back, but he declined
* he was then given an option – go to Vietnam or go home
* since he was in no condition to go to Vietnam, he chose to go home – he wasn't being uncooperative, he simply could not do his duty
* since his discharge, he has had two back surgeries and was granted service-connected disability by the Department of Veterans Affairs

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 25 March 1964.  He completed training and was awarded military occupational specialty (MOS) 550.00 (Supply Handler).  The highest rank/grade he attained during his military service was private/E-2.

3.  On 15 August 1964 upon completing his initial entry training, he was assigned to the 4th Supply and Transport Battalion, 4th Infantry Division, Fort Lewis, WA.

4.  His record indicates he attended sick call due to increased pain from a previous back injury.  His initial sick call visit resulted in a temporary physical profile with duty limitations; however, this physical profile is not available for review.

5.  On 20 January 1965, he was referred by his immediate commander to the Mental Hygiene Consultation Service at Fort Lewis, WA, where he was examined by a staff psychiatrist.

	a.  The psychiatrist noted that since basic training, the applicant had experienced considerable difficulty in military adjustment because of increased difficulty with back pain over his active duty term.  He received a thorough medical workup, with "no significant abnormality" found by the orthopedist.

	b.  The psychiatrist opined that the applicant was responsible for his own behavior, knew the difference between right and wrong, and could adhere to the right.  The applicant could understand and participate in any proceedings that would require his cooperation.  He did not suffer from any mental disease or derangement which would qualify him for consideration under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He presented many features typical of the "sick book rider"; more specifically, he was not malingering, but unconsciously exaggerating minor physical complaints as a reaction to stress and the frustration he felt from being in the service.

	c.  The psychiatrist recommended the applicant's separation from the service under the appropriate administrative regulation at the discretion of the command, such as Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability), if he could not perform his duties.  Retention on active duty could be expected to result in continued ineffectiveness.  His personality disorder was of such severity that he could not be expected to respond to counseling, transfer, or confinement.  If retained in the service, it could be anticipated that further acting out of his difficulties would occur, such as frequent visits to sick call.

6.  On 28 January 1965, the applicant's immediate commander initiated separation action against him for unsuitability in accordance with Army Regulation 635-209.  His commander stated he was not mentally motivated and was physically incapable of performing military duties.  He further stated the applicant had not responded to repeated counseling or extensive therapeutic treatment, and transfer to another organization would be of no value because it would have no bearing on his overall attitude.

7.  On 30 January 1965, he acknowledged that he had been counseled and advised of the basis for the contemplated separation action.  He was afforded the opportunity to request counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf.

8.  On 9 February 1965, his immediate commander submitted a statement regarding the applicant's physical limitations since his arrival.  His commander stated:

* the applicant arrived complaining of increased back pain due to a previous injury
* he was sent to sick call and was issued a temporary physical profile with duty limitations
* medical treatment options were discussed and the applicant was admitted to Madigan General Hospital; however, he refused spinal injections offered as a treatment option
* he was placed on physical therapy, which his doctors later stopped because they felt he was not fully committed to the program of exercises
* his usefulness at the unit was limited since his profile prohibited him from doing most duties
* every effort was made to rehabilitate the applicant – he is not a trouble maker and he has always obeyed orders; however, he has proven himself unable to adjust to his apparent physical and mental disorders

9.  His record contains statements from his section leader, section noncommissioned officer in charge, and 1SG, which describe his duty limitations due to his physical condition.  Each statement describes his inability to perform even basic military duties.

10.  On 17 February 1965 after having determined the applicant was unsuitable for further military service, the approval authority approved his discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed issuance of a General Discharge Certificate.

11.  On 2 March 1965, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was credited with the completion of 11 months and 8 days of total active service.  He was assigned separation program number 260 (Ineptitude).

12.  His medical records are not available for review.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-209, in effect at the time, set forth the policies and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier, or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included ineptitude; character and behavior disorders; disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively; enuresis; chronic alcoholism; and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if available.  An under honorable conditions (general) or honorable discharge was considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.  The evidence of record shows his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record includes several statements from various members of his chain of command, to include his immediate commander, who state his physical condition left him unable to perform even the most basic military duties and rendered him of little value in contributing to unit mission completion.

2.  His commander stated he refused medical procedures offered as a treatment for his back condition and his physical therapy treatments were terminated because they felt he was not committed to his treatment program.  Accordingly, his immediate commander initiated separation action against him for unsuitability.  His administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

3.  In view of the foregoing, there is no basis to grant the 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 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)                                         AR20090014049



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ABCMR Record of Proceedings (cont)                                         AR20120006993



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