IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130010270 


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 his general discharge be changed to a medical discharge.

2.  The applicant states he served his country during a time of war and suffered an injury to his right hand while in the Republic of Vietnam.  While in the medical holding company he went absent without leave (AWOL) on two occasions and on a third occasion due to problems with his spouse.  He claims he was a victim of circumstance, a victim of Vietnam.  He now suffers from the effects of Agent Orange, diabetes, post-traumatic stress disorder (PTSD), lung cancer, and a heart condition.  Due to his injuries he believes he should have received a medical discharge.

3.  The applicant provides copies of two letters. 

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 16 August 1968.  

3.  On 18 October 1968, the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL for the period 7 through 14 October 1968.

4.  The evidence shows he served in the Republic of Vietnam for the period 
20 January through 13 April 1969. 

5.  His records contain a DA Form 20 (Enlisted Qualification Record) that shows he was hospitalized on 30 April 1969.  This form also shows he returned to duty on 26 July 1969, as a cannoneer with Battery C, 4th Battalion, 73rd Field Artillery, Fort Bragg, NC.

6.  His records contain a DA Form 3349 (Medical Condition - Physical Profile Record), dated 30 June 1969.  This form states the applicant was medically qualified for temporarily restricted duty as evidenced by a medical examination conducted the same day.  This form also states the applicant had been hospitalized since 17 April 1969 with a fracture, proximal phalanx, of the right thumb.

7.  His records contain a second DA Form 3349 which shows he was medically qualified for temporarily restricted duty on 9 September 1969.  The form shows he received a laceration of the tendon of his left fifth finger.

8.  On 11 December 1969, the applicant was punished under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 8 December 1969.

9.  His records contain a certificate/statement of mental hygiene from a psychiatrist, dated 14 July 1970.  The psychiatrist stated:

   a.  The applicant had no mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  

   b.  The applicant was and is mentally responsible, both to distinguish right from wrong and to adhere to the right.  The applicant had the mental capacity to understand and participate in board proceedings.
   
   c.  The applicant was diagnosed with an antisocial personality, chronic, severe, manifested by reckless antisocial acting out behavior, low frustration tolerance, and emotional immaturity.  His condition represented a long-standing, refractory personality disorder which was not amenable to disciplinary action, psychotherapy, reclassification or reassignment.  He was psychiatrically cleared for any administrative or judicial action deemed appropriate by the command.
   
10.  The complete facts and circumstances of his discharge to include a separation physical are not available for review.  However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 20 August 1970 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service with an under conditions other than honorable discharge.  His DD Form 214 also shows he completed 1 year, 5 months, and 20 days of creditable active service with time lost from 4 February through 15 March 1970, on 6 April 1970, and from 17 April through 18 August 1970.

11.  On 5 January 1978, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general under honorable conditions under the provisions of the 19 January 1977 extension of Presidential Proclamation 4313.

12.  On 21 July 1978, the ADRB informed the applicant his discharge had been re-reviewed and the board determined not to affirm the applicant's upgraded characterization of service under uniform standards.  

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 or her office, grade, rank, or rating.  Paragraph 3-1 provides that 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 may reasonably be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

15.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties, may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), may compromise the health or well-being of other Soldiers, and/or may prejudice the best interests of the government if the individual were to remain in the military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his general discharge to a medical discharge has been carefully examined; however, it was determined that there is insufficient evidence to support this request.

2.  The applicant alleges he should have received a medical discharge because of an injury he sustained in the Republic of Vietnam.  

3.  The applicant's record shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 which is a voluntary request for discharge in lieu of trial by court-martial.

4.  With respect to a medical discharge, there is no evidence in his records which shows he was physically or mentally unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, his separation physical is not available; however, a psychiatrist found him psychiatrically cleared for administrative separation. 

5.  The applicant failed to show through the evidence submitted and the evidence of record that he was medically/physically unfit at the time of discharge and that he should have been processed for separation due to a physical disability.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20130010270



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ABCMR Record of Proceedings (cont)                                         AR20130010270



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