IN THE CASE OF:	  

		BOARD DATE:	   1 April 2014  

		DOCKET NUMBER:  AR20130012802 


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, in effect:

	a.  correction of his records to show he was separated due to physical disability and

	b.  an upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  The applicant states that while he was serving in Pusan, Korea, a streetcar hit the jeep he was riding in, it rolled over, and he injured his head.

3.  The applicant provides:

* DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Department of Veterans Affairs (VA), Nashville, TN, letter, dated 20 June 2013
* VA Form 21-56EZ (Application for Disability Compensation and Related Compensation Benefits), dated 26 June 2013
* VA Form 21-686C (Declaration of Status of Dependents), undated
* VA Form 21-4142 (Authorization and Consent to Release Information to the VA), dated 26 June 2013



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 was inducted into the Army of the United States on 11 June 1952.  He was awarded military occupational specialty 910 (Medical Corpsman).

3.  He subsequently enlisted in the Regular Army on 7 March 1953 for a period of 6 years.  He served overseas in Korea from 26 July 1953 through 17 November 1954.

4.  On 16 November 1955, the applicant was convicted by a special court-martial of:

* failing to go at the time prescribed to his appointed place of duty (two specifications)
* absenting himself without proper authority (two specifications) from –

* 20 to 24 October 1955
* 25 to 31 October 1955

5.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $50.00 pay per month for 4 months.

	a.  The convening authority approved only so much of the sentence as provided for confinement at hard labor for 3 months and forfeiture of $50.00 pay per month for 3 months, and ordered the sentence duly executed.

	b.  On 16 January 1956, the special court-martial convening authority directed suspension of the unexecuted portion of the sentence for a period of 6 months at which time, unless sooner vacated, the unexecuted portion of the sentence would be remitted without further action.

6.  On 18 June 1956, the applicant was convicted by a summary court-martial of absenting himself without proper authority from 7 May to 7 June 1956.

	a.  He was sentenced to confinement at hard labor for 30 days and forfeiture of $50.00 pay per month for 1 month.

	b.  The convening authority approved the sentence on 18 June 1956.

7.  A psychological evaluation shows the applicant was seen by the Chief of the Psychology Section, Mental Hygiene Consultation Service, U.S. Army Hospital, Fort Knox, Kentucky, on 11 April 1956.  He found that nothing in the applicant's test material suggested any grossly bizarre ideation or confusion.

8.  A Certificate of Neuropsychiatric Examination shows the applicant was seen by a neuropsychiatrist of the Mental Hygiene Consultation Service, U.S. Army Hospital, The Armored Center, Fort Knox, Kentucky, on 19 April 1956.  He diagnosed the applicant as having a mental deficiency.

	a.  He found the condition was not disabling with no disqualifying mental or physical defects sufficient to warrant a discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	b.  He recommended the applicant's separation from military service for unsuitability under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability).

9.  On 18 June 1956, the company commander recommended the applicant's discharge under the provisions of Army Regulation 635-209.  The commander stated the applicant had demonstrated that he is totally unsuitable for further retention in military service as the reason for the proposed separation.

10.  On 20 June 1956, the company commander notified the applicant to appear before a board of officers for the purpose of determining whether he should be eliminated from the service.

11.  On 20 June 1956, the applicant acknowledged that he was afforded the opportunity to request counsel and he elected to accept the counsel furnished by the convening authority.

12.  On 22 June 1956, the board of officers met for the purpose of determining whether the applicant should be eliminated from the service.

	a.  The applicant was advised of his rights, he was present during all open sessions of the board, and he was represented by counsel.  The applicant was afforded the opportunity to cross-examine adverse witnesses, to present evidence in his own behalf, and to testify in person or submit a written statement.  He elected not to make a statement.

	b.  The board considered the recommendation of the unit commander and the applicant's previous record of convictions.

	c.  The board recommended the applicant's discharge from the service and issuance of a DD Form 257A (General Discharge Certificate).

13.  On 27 June 1956, the separation authority approved the applicant's discharge.

14.  The applicant's DD Form 214 shows he was discharged under honorable conditions from the Regular Army for unsuitability on 6 July 1956 under the provisions of Army Regulation 635-209.  He completed 2 years, 10 months, and 29 days of net active service during this period; 8 months and 26 days of other service; and 3 years, 7 months, and 25 days of total net service that included 1 year, 4 months, and 26 days of foreign service.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

16.  The applicant provides copies of his VA claim documents and a VA letter, dated 20 June 2013, that shows he was required to complete, sign, and return his application to the VA Regional Office in order for the VA to start processing his claim.

17.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier, or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included character and behavior disorders; disorders of intelligence; and transient personality disorders due to acute or special stress, apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  An honorable or a general discharge was considered appropriate.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  This regulation, which superseded Army Regulation 635-209, was revised on 1 December 1976 following settlement of a civil suit.  Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.

	b.  Chapter 3, 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.

19.  Army Regulation 635-40 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 in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was separated due to a disability and his general discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that he was injured while serving in Korea is not in dispute.  However, there are no medical records that show he was injured or that such an injury resulted in a condition that was found to be unfitting for further military service.  Following examination by a neuropsychiatrist, the applicant was found qualified for administrative separation.  Therefore, he is not entitled to correction of his records to show he was medically discharged or medically retired from the Army.

3.  The applicant's separation under the provisions of Army Regulation 635-209 for unsuitability was proper and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the characterization of service directed was appropriate and equitable.

4.  Army Regulation 635-209 was superseded subsequent to the applicant's discharge from the Army and thereafter the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.

	a.  The evidence of record shows the applicant was convicted by a special court-martial and also convicted by a summary court-martial during the period of service under review.  Furthermore, he only completed about one-half of his 6-year active duty service obligation.

	b.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  In view of all of the foregoing evidence, there is an insufficient basis for granting the requested relief.

6.  The applicant provided the ABCMR documents related to his VA Application for Disability Compensation and Related Compensation Benefits.  The applicant is advised that the VA website provides information on Federal government veterans' benefits and also links to various State websites for information on State government veterans' benefits at:  www.vba.va.gov.

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 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)                                         AR20130012802



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012802



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1