IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120010794 


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 that the authority and reason for his honorable discharge be changed to show he received a medical discharge.

2.  The applicant states he was diagnosed with battle fatigue and he was subsequently deemed unsuitable for rehabilitation.  He further states a psychiatrist reviewed his medical records and informed him that he should have received a medical discharge due to the presence of battle fatigue in his records.

3.  The applicant provides a letter from a medical doctor. 

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 on 1 September 1967.  He completed training and was awarded military occupational specialty 36K (Wireman).  The highest rank he attained during his military service was specialist four/E-4.  However, he held the rank/grade of private/E-1 at the time of separation.

3.  His records show he served in the Republic of Vietnam for the period             7 February 1968 through 1 September 1969.

4.  His records show during the period 23 October 1969 through 6 May 1970, he was repeatedly counseled for his unsatisfactory duty performance which was characterized as the intentional shirking of his duties, rendering him repeatedly subject to punitive action. 

5.  His records indicate he received punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two separate occasions.  On      9 February 1970, he was convicted by a special court-martial of being absent without leave (AWOL) for 5 days.

6.  On 12 May 1970, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  

7.  On 27 May 1970, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action 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 further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He also acknowledged he under he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, a personal appearance before a board of officers, representation by appointed counsel, and he declined to make a statement in his own behalf.

8.  On 27 June 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate.  On 29 June 1970, the applicant was accordingly discharged from the Army.  

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of      2 years, 9 months, and 20 days of creditable active military service and had 8 days of lost time.

10.  His record contains an Army Discharge Review Board (ADRB) Brief, dated  6 June 1975.  The section titled Medical Data/Diagnosis shows an entry indicating the applicant was found to have an inadequate personality, chronic, severe on 2 April 1970.  However, the applicant's separation profile shows he received a rating of "111111" on 22 April 1970, which indicates that he was fully medically eligible for retention.

11.  On 10 June 1975, the ADRB determined the applicant was not equitably discharged, and he was entitled to an honorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations).  On 20 June 1975, the applicant accepted an honorable discharge.

12.  The applicant's medical records are not available for review nor did the applicant provide evidence which shows 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.

13.  The applicant provides a letter from a medical doctor who states the applicant is a patient in the mental health clinic at the Atlanta Veterans Affairs Medical Center who has been diagnosed with post-traumatic stress disorder (PTSD) due to his combat exposure in Vietnam.  The doctor further states that she reviewed the applicant's Certificate of Psychiatric Evaluation, dated 2 April 1970, and his personnel file and concluded symptoms of the onset of PTSD at the time included his inability to follow regulations, petty offenses, habitual shirking, and AWOL.  She states the applicant tried to get treatment for his emotional distress from PTSD, but was reprimanded and punished by his superiors.  She also states his PTSD began during his military service, likely related in part to his service during the Tet Offensive in March 1968.  She further states the psychiatric evaluation at the time indicated the applicant had battle fatigue and that he was not able to be rehabilitated.

14.  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

15.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records revealed a history of indiscipline and/or misconduct including at least one instance of a court-martial and multiple instances of punishment under the provisions of Article 15, UCMJ.  Accordingly, his chain of command initiated administrative separation action against him.  

2.  Subsequent to his separation, the ADRB determined the applicant was not equitably discharged and he was entitled to an honorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations).  On 20 June 1975, the applicant accepted an honorable discharge.

3.  Prior to his separation, he underwent a medical and a mental examination and he was found medically qualified for separation as evidenced by the applicant's separation profile.  The applicant's medical records are unavailable for review; however, there is no evidence in his personnel records nor did he provide substantiating evidence which shows he was medically disqualified for retention.  

4.  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.

5.  In view of the foregoing, there is insufficient evidence to warrant a change in the authority and reason for his discharge. 

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)                                         AR20120010794



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ABCMR Record of Proceedings (cont)                                         AR20120010794



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