IN THE CASE OF:
BOARD DATE: 30 May 2013
DOCKET NUMBER: AR20120018213
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:
a. his undesirable discharge be changed to a medical discharge; and
b. his military occupational specialty (MOS) be changed.
2. The applicant states:
* an error was made on his MOS; he was an air evacuation specialist
* he had a critical MOS and secret clearance
* he was pending a medical retirement and was incarcerated at the same time
* the military found him not guilty and he was released from incarceration in 1975
* he deserves a medical discharge
* the proceedings for a medical discharge (schizophrenia, paranoid type, chronic, severe; and service-connected injury, medial collateral ligament (knee injury)) should have continued upon his release from incarceration
* he did go through drug rehabilitation at Fort Dix, NJ
3. The applicant provides:
* DD Form 214 (Report of Separation from Active Duty)
* Excerpts from his board of officer proceedings
* Department of Veterans Affairs (DVA) Rating Decision
* Psychological Evaluation, dated 11 August 1981
* Student transcript
* Diploma
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 (RA) on 10 September 1964 for a period of 3 years. He completed his training and was awarded MOS 71G (medical record specialist). On 22 August 1967, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.
3. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 22 August 1967 shows his MOS as 71G.
4. He enlisted in the RA on 20 August 1970 for a period of 3 years.
5. On 4 November 1970, nonjudicial punishment was imposed against him for failing to go to his appointed place of duty.
6. On 1 November 1973, he was convicted of murder and atrocious assault and battery by civil authorities in New Jersey. He was sentenced to the New Jersey Youth Reception and Correction Center for a period not to exceed 6 years on the first count and an indeterminable term on the second count, both to run concurrently, with 291 days credit for time spent in confinement.
7. On 28 March 1974, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for conviction by civil court. On 29 March 1974, he requested consideration of his case by a board of officers.
8. A board of officers convened on 25 June 1974 and found that the applicant was undesirable for further retention in the military service because of his conviction by a civil court and recommended that he be discharged from the service for misconduct (conviction by civil court) with the issuance of an undesirable discharge.
9. The following information was presented by the Commander, Medical Holding Company, Walson Army Hospital during the board proceedings:
* the applicant was on convalescent leave at the time of the incident in April 1973
* he was being treated for a psychiatric disorder
* a Medical Evaluation Board found him unfit for further service and referred his case to a Physical Evaluation Board (PEB)
* the applicant's PEB proceedings were stopped when he was placed into civil confinement
* the Commander received clearance from the psychiatrist that the applicant was stable and when his case was forwarded from Walson Army Hospital it was forwarded with the recommendation that the applicant was mentally competent and was not subject to cause injury
* he went from convalescent leave status to civil confinement
* he was recommended for a medical discharge based on the following diagnoses: schizophrenia, paranoid type, chronic, severe; improper use of drugs; drug dependency; and a service-connected injury, medial collateral ligament (knee injury)
10. On 29 July 1974, the separation authority approved the findings and directed that the applicant be discharged with an undesirable discharge.
11. He was discharged on 22 August 1974 with an undesirable discharge under the provisions of Army Regulation 635-206 due to conviction by a civil court. He served a total of 6 years, 3 months, and 15 days of creditable active service with 244 days of lost time.
12. His DD Form 214 for the period ending 22 August 1974 shows his MOS as 71G.
13. There is no evidence which shows he was awarded any other MOS than 71G prior to his discharge.
14. On 1 December 1978, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.
15. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. The regulation provided for the separation of personnel for conviction by a civil court. An undesirable discharge was normally considered appropriate.
16. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The regulation provides an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.
17. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends his MOS is incorrect, evidence shows he was awarded MOS 71G which is properly reflected on his DD Forms 214. Therefore, there is insufficient evidence on which to base amending his MOS.
2. Although he contends the military found him not guilty, evidence shows he was discharged due to his civil conviction for murder and atrocious assault and battery.
3. The applicant contends his undesirable discharge should be changed to a medical discharge because he was pending a medical retirement when he was incarcerated for a civil offense. He also contends the proceedings for a medical discharge should have continued upon his release from incarceration.
4. Although he was referred for physical disability processing, in accordance with the governing regulation, his administrative separation with an undesirable discharge discontinued that process. Therefore, there is insufficient evidence to show a medical discharge was warranted.
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) AR20120018213
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ABCMR Record of Proceedings (cont) AR20120018213
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