IN THE CASE OF:	  

		BOARD DATE:  5 November 2013

		DOCKET NUMBER:  AR20130003655 


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 correction of his administrative discharge to show that he was medically discharged.

2.  The applicant states he injured his back in 1972 and was discharged from the Army in 1973.  He adds there was no justification for the discharge he received.

3.  The applicant states that he attached documents to his application; however, he provided no supporting documents.

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 on 12 October 1970 for a period of 3 years.  He was awarded military occupational specialty 76S (Automotive Repair Parts Specialist).  He was assigned overseas to Panama on 14 April 1972.

3.  During the year 1972, the applicant received nonjudicial punishment (NJP) on two occasions for failing to report for duty at the time prescribed.

4.  On 18 January 1973, the applicant was convicted at a summary court-martial of:

* being absent from his unit (two specifications)
* failing to go at the time prescribed to his appointed place of duty

5.  On 22 January 1973, the applicant received NJP for failing to report to sign-in while on restriction.

6.  A Standard Form 88 (Report of Medical Examination), dated 26 January 1973, shows the examining physician entered in item 74 (Summary of Defects and Diagnoses) the notation, "Essentially negative."  He also found the applicant qualified for separation.

7.  On 5 April 1973, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness due to an established pattern of shirking.  The applicant was advised of his rights and the separation procedures involved.

8.  The applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He waived consideration of his case by a board of officers.

	b.  He waived personal appearance before an administrative separation board.

   c.  He indicated that he would not submit statements in his own behalf.
   
   d.  He acknowledged that military legal counsel for consultation was available to assist him; however, he waived representation by counsel.

   e.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharged was issued to him.

   f.  He acknowledged he understood that if he received an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State law and that he may expect to encounter substantial prejudice in civilian life.
   
   g.  The applicant and consulting counsel each placed their signature on the document.

9.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

10.  The separation authority approved the chain of command's recommendation for discharge of the applicant and directed he be discharged for unfitness and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 12 July 1973.

11.  On 10 August 1977, the applicant formally appeared before the Army Discharge Review Board (ADRB) requesting a review of his discharge.  The ADRB determined the applicant's discharge was proper, but inequitable.  Accordingly, the character of service of the applicant's discharge was changed to general, under honorable conditions.

12.  The ADRB voided the applicant's original DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and he was issued a new
DD Form 214 (Report of Separation from Active Duty).  It shows he entered active duty on 12 October 1970 and he was discharged under honorable conditions on 12 July 1973 under the provisions of Army Regulation 635-200 based on unfitness.  He had completed 2 years, 8 months, and 26 days of net active service this period.

13.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, an established pattern of shirking, failure to pay just debts, and failure to support dependents.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

   a.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

   b.  Paragraph 2-2b provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his administrative discharge should be corrected to show that he was medically discharged because he injured his back in 1972.

2.  The evidence of record shows that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

   a.  On 26 January 1973, the applicant was found medically qualified for administrative separation.

   b.  There is no evidence of record and the applicant provides insufficient evidence to show that he was found medically unfit subsequent this finding.

3.  The applicant's discharge on 12 July 1973 under the provisions of Army Regulation 635-200, chapter 13, for unfitness based on a pattern of shirking was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of this case, the reason for his separation and characterization of discharge were appropriate and equitable.
4.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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)                                         AR20130003655



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ABCMR Record of Proceedings (cont)                                         AR20130003655



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