IN THE CASE OF: 

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120017650 


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 to honorable.

2.  The applicant states his general discharge was given in error and is unjust because he was suffering from a traumatic brain injury (TBI) that left him with an 80-percent service-connected disability with individual unemployability.  He did not deserve the general discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Department of Veterans Affairs (VA) Rating Decision letters, dated 11 April 2012 and 18 March 2010.

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.  Following prior service in the Louisiana Army National Guard, the applicant enlisted in the Regular Army on 25 February 1980.  He held military occupational specialty (MOS) 91B (Medical Specialist) while in the Louisiana Army National Guard, but did not complete MOS training in the Regular Army.

3.  He underwent a medical examination on 11 September 1980.

	a.  Item 42 (Psychiatric) of his Standard Form 88 (Report of Medical Examination) states, "No psychiatric disease found at this time."

	b.  His Standard Form 93 (Report of Medical History) shows:

		(1)  The applicant marked the "Yes" block in item 11 (Head Injury).

		(2)  A comment relating to item 21 (Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses?) states, "Neurology, Martin Army Hospital for Head injury."

		(3)  Item 25 (Physician's summary and elaboration of all pertinent data) shows, in part, the notations:  "Headaches/dizziness – intermittent….Head injury May 1980 – normal exam by Neurologist….Trouble sleeping – intermittent with…."

	c.  A Report of Mental Evaluation shows the applicant's behavior was normal. He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal, and his memory was good.  The evaluating physician marked the "Other" block in the impressions section and indicated in the remarks section:  "N.A.P.D. [no apparent psychiatric disorder]."

4.  On 2 October 1980, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsuitability (apathy).  On the same date, the applicant acknowledged receipt of the separation notification action.

5.  The applicant was advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.

6.  The applicant also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He also acknowledged he understood he might be ineligible for many benefits as a veteran under both Federal and State laws and might encounter substantial prejudice in civilian life in the event of the issuance of less than a fully honorable discharge.

7.  On 9 October 1980, his immediate commander initiated elimination action against the applicant for unsuitability.  The specific reason cited was apathy.  The commander stated the applicant had been an extreme discipline problem.  He had accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on six occasions.  An enclosed counseling summary shows the applicant received eight negative counselings between 20 August and 8 October 1980.

8.  The intermediate commander recommended approval of the applicant's discharge action for unsuitability.

9.  On 22 October 1980, the separation authority waived further rehabilitative requirements, approved the applicant's discharge, and directed issuance of a General Discharge Certificate.

10.  The applicant was accordingly discharged on 28 October 1980.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, with his service characterized as under honorable conditions (general).  He completed 8 months and 4 days of net active service during this period.

11.  There is no indication he previously petitioned the Army Discharge Review Board for an upgrade of his discharge.

12.  The applicant provides VA Rating Decisions showing he received a combined rating of 80-percent service-connected disability for mild TBI and psychotic disorder and major depression due to mild TBI.  Entitlement to individual unemployability as a permanent and total evaluation was granted.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  This chapter required that separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this chapter was characterized as honorable or under honorable conditions.

	b.  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.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded because it was unjust.  He was suffering from TBI.  He has been rated as 
80-percent service-connected disabled by the VA with individual unemployability.

2.  The applicant's history of misconduct, including six instances of nonjudicial punishment and multiple negative counselings for various infractions, clearly does not meet the standards of acceptable conduct for Army personnel.

3.  The available records show his mental status evaluation indicated no apparent psychiatric disorder at the time of his separation.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090019477



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ABCMR Record of Proceedings (cont)                                         AR20120017650



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