IN THE CASE OF:	  

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130001857 


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 medical discharge with a medical retirement in lieu of his 1971 discharge for unsuitability. 

2.  The applicant states he was put out of the Army because he was unsuitable for military service after he served in Vietnam. 

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 30 December 1969 and 20 October 1971
* Army Discharge Review Board (ADRB) upgrade decision
* Honorable Discharge Certificate
* Acknowledgement of separation action memorandum

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 11 March 1968 for 3 years and he held military occupational specialty (MOS) 44B (Metal Body Repairman-Automobile Body Repairman).

3.  He was assigned to Germany on 11 October 1968.  While in Germany, he was honorably discharged on 30 December 1969 for the purpose of immediate reenlistment in the RA.  

4.  He reenlisted in the RA for 4 years on 31 December 1969 in MOS 51L (Refrigeration Equipment Repairman).  

5.  He returned to the United States on 24 March 1970 and he was assigned to Vietnam from on or about 13 May 1970.  He was assigned to multiple units, including the 36th Signal Battalion, 275th Signal Company, 1st Signal Brigade, and 269th Signal Company.

6.  On 25 February 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to obey a general regulation. 

7.  On or about 16 March 1971, he left Vietnam and he was assigned to the 704th Maintenance Battalion, Fort Carson, CO.  However, on 7 June 1971, his chain of command identified him as ineligible for reenlistment.  

8.  On 2 September 1971, due to disciplinary and racial disharmony directly related to him he was rehabilitatively transferred to another section within the unit.  The reasons for this transfer are outlined as follows:

* unsatisfactory performance and character
* undesirable attitude; he would do only what he desired
* being late and missing work call
* frequent sick call appointments
* failing to report for duty
* refusal to remove jewelry when asked by the mess sergeant
* negative attitude and willful neglect in the performance of his duties
* despite the transfer, he failed to adhere to the standards


9.  On 13 September 1971, a psychiatric evaluation report was rendered by a Mental Hygiene Consultation Services (MHCS) social worker/psychiatric specialist.  The report stated the applicant:

* was first seen at the MHCS on 9 June 1971; he was referred to the troop medical clinic for symptoms of delayed combat neurosis and anxiety
* was then frequently seen at MHCS for therapy due to his aggressive behavior and lack of responsibility
* had a history of heavy drinking which he stated eased the pain in his legs and head
* stated that he desired to be separated; his failure to adjust adequately to military duties necessitated his separation
* his chain of command felt his presence was detrimental to the discipline and performance of other members in the unit

10.  On 20 September 1971, the applicant’s immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsuitability.  Specifically, the immediate commander cited the applicant's character and behavior disorder, paragraph     6-b(2), as well as his defective attitude and inability to expend effort constructively, paragraph 6-b(3). 

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

* he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him
* in the event of the issuance of an undesirable discharge, 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

12.  Subsequent to this acknowledgement, 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.


13.  On 28 September 1971, the applicant’s intermediate commander recommended a waiver of the requirements for further rehabilitative measures, approval of the discharge action, and the issuance of a General Discharge Certificate.

14.  On 4 October 1971, the separation authority approved the applicant’s discharge under the provisions of chapter 13 of Army Regulation 635-200 and directed that he be issued a General Discharge Certificate.  

15.  On 8 October 1971, the applicant underwent a mental status evaluation.  The evaluation revealed his behavior was normal and he was fully alert and oriented.  He had a leveled mood, clear thinking process, and normal thought content.  He had no significant mental issues and he:

* was mentally responsible and able to distinguish right from wrong
* was able to adhere to the right and he had the mental capacity to understand and participate in board proceedings
* met retention standards prescribed in chapter 3 of Army Regulation 
40-501 (Standards of Medical Fitness)

16.  He was discharged on 20 October 1971.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 by reason of unsuitability with Separation Program Number 264 (character and behavior disorder) with a character of service of under honorable conditions (general).  This form further shows he completed 1 year, 9 months, and 20 days of creditable active military service during this period. 

17.  On 8 December 1976, the ADRB reviewed his discharge and directed that his discharge be changed to honorable.  Accordingly, his DD Form 214 dated 20 October 1971 was voided and he was issued a new DD Form 214 that reflected his honorable characterization of service and a Separation Code of JMB (Personality Disorder). 

18.  His service medical records are not available for review with this case.  There is nothing in his official records that shows:

* he suffered and/or was diagnosed with an illness or an injury that rendered him unable to perform the duties required of his former grade or military specialty
* he was issued a physical profile of a permanent nature that prevented him from performing the duties required of his former grade or military specialty
* he was found medically unqualified for separation in 1971
* he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES)

19.  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.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES 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 (MEB's), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  

21.  Army Regulation 635-40 provides guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

22.  Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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 office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.  Chapter 3 states disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant failed to adjust adequately to military duties and his aggressive behavior, unsatisfactory performance, and lack of responsibility in dealing with his superiors and adhering to military standards carried over to his new unit.  He was reassigned on a rehabilitative transfer in Vietnam and multiple times at Fort Carson, CO.  His presence continued to be a detriment to unit discipline and morale. 

2.  He underwent a mental status evaluation that diagnosed him with a character and behavior disorder.  This coupled with his defective attitude and inability to expend effort constructively led his chain of command to initiate separation action against him.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of his service is commensurate with his overall record of military service.  

3.  The ADRB reviewed his discharge and determined the characterization of service should be upgraded to honorable.  However, his narrative reason for discharge remained the same - personality disorder.  

4.  He found to have met retention standards in 1971.  Referral to the Army disability system requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  Here, there is no evidence he: 

* had a permanent physical profile
* was diagnosed with a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* had a mental status evaluation that confirms a diagnosis of any mental health problem
* had a medical examination that warranted his entry into the PDES

5.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's discharge and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of will be rated.   
6.  In the applicant's case, contrary to his belief and/or assertion that he should have been medically discharged, not only was he not diagnosed with any disabling condition at the time of his discharge, his service was not interrupted by any medical condition.  His service was interrupted by his failure to adjust and defective attitude towards the military.  

7.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 

8.  The applicant has failed to support his contention that he was medically unqualified at the time of his 1971 discharge or that he was eligible for disability processing.  Therefore, he is not entitled to 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 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)                                         AR20130001857



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ABCMR Record of Proceedings (cont)                                         AR20130001857



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