BOARD DATE:	 26 March 2014 

		DOCKET NUMBER:  AR20130011810 


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 under conditions other than honorable discharge be changed to a medical discharge. 

2.  The applicant states shortly before he was scheduled to deploy to the Republic of Vietnam his father passed away.  He should have been medically evaluated prior to his discharge because he became ill within three months following his discharge.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* State of Illinois Department of Mental Health Medical History
* State of Illinois Department of Mental Health Physical Examination
* 4 pages of a Discharge Summary
* 2 pages of an Illinois Department of Mental Health and Developmental Disabilities Medical History

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 30 July 1971.  Subsequent to completion of his training in military occupational specialty 11H (Infantry Direct Fire Crewmember), he was assigned to Fort Ord, CA.

3.  His records reveal an extensive history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice from January through August 1972.

4.  On 20 September 1972, he underwent a separation physical examination at Fort Ord, CA.  The attending physician indicated the applicant had no medical complaints and he was qualified for release from active duty.  His Standard Form 88 (Report of Medical Examination) also indicated a mental health evaluation was attached; however, none was resident in his records.

5.  His records show he was absent without leave for the periods 14 through 
15 November 1972 and 16 through 24 November 1972.

6.  On 24 November 1972, he completed a DA Form 3082-R (Statement of Medical Condition) wherein he indicated there had been no change in his medical condition since his separation physical exam.

7.  The complete facts and circumstances of the applicant's discharge are not available for review; however, the applicant provides and his record contains a DD Form 214 that shows he was discharged on 1 December 1972 under the provisions of Army Regulation 635-212 (Personnel Separations) by reason of unfitness with a characterization of service of under other than honorable conditions.  This form further shows he completed 1 year, 4 months, and 21 days of creditable active service with 11 days of lost time.

8.  The applicant provides medical documentation from the State of Illinois Department of Mental Health, dated 27 August 1973.  Much of the documentation is illegible; however, it does indicate the applicant was psychotic and diagnosed as schizophrenic.  He also provides discharge summaries dated:

* 11 October 1973, that show he was diagnosed with acute psychosis associated with drug abuse
* 14 June 1974, that show he was diagnosed with schizophrenia 
* 24 January and 19 February 1975, that show he was diagnosed with chronic schizophrenia

9.  Evidence shows the applicant petitioned the ABCMR to upgrade discharge.  On 21 September 2010, the Board denied his request.

10.   Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

11.  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 under other than honorable conditions discharge to a medical discharge has been carefully examined; however, it was determined that there is insufficient evidence to support this request.

2.  There is insufficient 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, although his mental health evaluation was not present in his records, his separation physical was available and clearly shows he was examined and found qualified for discharge. 

3.  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)                                         AR20130011810



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ABCMR Record of Proceedings (cont)                                         AR20130011810



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