IN THE CASE OF:	  

		BOARD DATE:	    2 July 2013

		DOCKET NUMBER:  AR20120022239 


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 an honorable discharge for medical reasons. 

2.  The applicant states he was given "a medical chapter 13" instead of an honorable discharge.  He never received any nonjudicial punishment and he did his job to the best of his ability. 

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army (RA) on 27 June 1972 and held military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  He served in Korea from January to December 1974.

3.  He was honorably discharged on 16 October 1974 for the purpose of immediate reenlistment.  He completed 2 years, 3 months, and 20 days of active service and he was issued a DD Form 214 (Report of Separation from Active Duty) that captured his active service. 

4.  He reenlisted in the RA on 17 October 1974 while at Fort Stewart, GA.  He was reassigned to Germany on or about 4 August 1976.  He was assigned to the 205th Aviation Company.  

5.  On 1 September 1976, he underwent a medical examination that shows he met retention standards and was cleared for administrative actions by his chain of command. 

6.  On 2 September 1976, the applicant’s immediate commander notified the applicant of his intent to initiate him for elimination from the Army under the provisions of paragraph 13-5b of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsuitability due to apathy, defective attitude, and inability to expend effort constructively.  The immediate commander recommended a general characterization of service.

7.  On 3 September 1976, the applicant acknowledged receipt of the notification of his pending separation action.  He subsequently consulted with counsel and he was advised of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-200.  He further waived consideration of his case by a board of officers, a personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.  He indicated he understood:

* he may only receive a discharge under honorable conditions since he was being recommended for discharge under chapter 13 for unsuitability
* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life


8.  The applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability.  The immediate commander stated the applicant had arrived on 5 August 1976 and since arrival, he had had five medical consultations.  He was diagnosed and was under medication for Narcolepsy 
(sleep disorder) since 16 July 1976.  This was revalidated by the psychiatrist on 19 August 1976.  His physical profile prohibited him from an association with equipment and his MOS was 63B, motor maintenance.  The applicant had stated he intended to leave in an absent without leave status if he was not discharged.  The immediate commander recommended the issuance of a general discharge. 

9.  On 13 September 1976, the separation authority waived further rehabilitative requirements and approved the applicant's discharge under the provisions of paragraph 13-5b of Army Regulation 635-200 by reason of unsuitability and that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 23 September 1976. 

10.  His DD Form 214 shows he was discharged on 23 September 1977 under the provisions of paragraph 13-5b of Army Regulation 635-200 with a separation program designator (SPD) code of JMB (unsuitability) and with an under honorable conditions (general) characterization of service.  He completed 1 year, 11 months, and 7 days of creditable active service during this period of enlistment.

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that Board's 15-year statute of limitations. 

12.  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.

13.  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.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows upon arrival at his unit, the applicant's chain of command noticed he was displaying apathy (a lack of interest), a defective attitude, and/or an inability to expend effort constructively.  As a result, his chain of command initiated separation action against him. 

2.  Although he may have had a profile for Narcolepsy, he underwent a separation physical that determined he met retention standards.  His separation appears to have been accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable. 

3.  The applicant was assigned to Germany on or about 4 August 1976.  One month later, separation action was started against him because according to his commander "he was unable to do his job."  While there is no legal or regulatory error in the processing of his discharge (he was notified, advised of his rights, and exercised his rights), it appears his discharge was inequitable.  It is reasonable to presume if his commander reassigned or rehabilitated him or possibly reclassified him, the applicant could have performed differently.  

4.  The under honorable conditions (general) characterization of service appears to be inequitable, given his overall service, in that there were no infractions, a record of nonjudicial punishment, lost time, or any derogatory information on file. Therefore, as a matter of equity only, the applicant should be issued an honorable discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was separated from the service with an Honorable Discharge Certificate on 23 September 1976. 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he was discharged for medical reasons. 



      _______ _  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)                                         AR20120022239



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ABCMR Record of Proceedings (cont)                                         AR20120022239



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