IN THE CASE OF:	   

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130021050 


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 an upgrade of his undesirable discharge to a general discharge and a change of the reason and authority for discharge. 

2.  The applicant states, in effect, his record is in error because what was considered "shirking his duties" was really his inability to perform the duties due to his back injury.  He further states his permanent profile did not allow him to do certain things, but his captain thought there was nothing wrong with his back.

3.  The applicant provides:

* reverse side of a DA Form 8-274 (Medical Condition – Physical Profile Record)
* extract of DA Form 20 (Enlisted Qualification Record)
* DD Form 4 (Enlistment Record – Armed Forces of the United States)
* 1AA Form 653-1 (Individual's Statement) 

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.  On 11 October 1966, he was inducted into the Army of the United States.  On 18 October 1966, he immediately enlisted in the Regular Army for a period of 
3 years.  He was awarded military occupational specialty 76S (Automotive Repair Parts Specialist).  The highest rank/grade he held was private two/E-2.

3.  A DA Form 8-274 contained in the applicant's records show he was assigned an "L3" permanent profile on 6 June 1967 due to scoliosis-thoracic spine.  It shows he was medically qualified for duty with limitations.  His assignment restrictions were no crawling, stooping, running, jumping, prolonged standing or marching, and strenuous physical activity.  He was also to have no assignment requiring prolonged handling of heavy materials including weapons, no overhead work, no pull-ups or push-ups. 

4.  A Report of Psychiatric Evaluation, dated 23 June 1967, shows the examiner found the applicant was afflicted with a multitude of psychosomatic symptoms based upon the incidental finding of scoliosis, which should not have produced the degree or quality of symptoms described.  The examiner stated the applicant was an unstable individual who was not able to express any goal or desire in life.  The examiner recommended the applicant be promptly separated from military service.

5.  On 12 July 1967, the applicant was advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.  He requested a personal appearance before a board of officers and representation by appointed counsel.  He elected not to submit statements in his own behalf and he waived representation by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further acknowledged he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

6.  On 13 July 1967, he acknowledged in writing he had been advised by counsel on 12 July 1967 of the basis for the proposed action to separate him for unfitness under the provisions of Army Regulation 635-212.  He stated after further consideration he desired to waive consideration of his case by a board of officers and did not desire any counsel. 
7.  On 13 July 1967, the applicant was advised by his commander that action was being proposed to discharge him from the Army in accordance with paragraph 10a of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The applicant was advised that the basis for the recommended action was as follows:

	a.  From April – June 1967 the applicant had established a pattern of shirking by excessively reporting to sick call and using his profile to escape required and reasonable duties.

	b.  Since his arrival at the unit the applicant had required constant and close supervision in order to ensure minimal dress and behavior standards.  By committing minor offenses against good order and discipline and attempting to falsely associate such behavior with mental or physical problems, he consumed valuable time and contributed nothing to the betterment of the unit.  The results of the applicant's actions thereby created an intolerable burden for others to carry.

8.  The applicant's leadership provided the following information in separate statements or certificates in support of separating the applicant from the military.

   a.  Chief Warrant Officer OLR stated he made a complete check of the spare parts records after his arrival at the unit and found them to be incorrect in almost every phase.  He instructed the applicant in the proper procedure and instructed him to complete the records.  He checked the records 1 week later and found very little improvement.  He counseled the applicant at different times during the 30 days he was assigned to his section and the applicant seemed to have the idea implanted in his mind that getting out of the service was his only salvation.
   
   b.  Additional statements describe how the applicant was counseled regarding his inability to perform his work satisfactorily even after long periods of counseling and every attempt made to help him.  It was believed that the applicant's poor attitude towards the service was a result of his desire to do what he pleased and to avoid an overseas assignment by obtaining an "easy out."
   
9.  The applicant's commander recommended the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness.  

   a.  He stated since being removed from his job as a school-trained ordnance supply specialist because of inefficiency on 24 April 1967, the applicant had consistently shirked his duty by excessive reporting to sick call for back pain.  Although the applicant was given a profile regarding his back pain, Captain SLK of Orthopedic Clinic, Kimbrough Army Hospital had evaluated him as retainable for duty.  Positive evidence contributing to his back pain could not be found by Captain SLK.
   
   b.  His commander further stated the results of the applicant's mental evaluation indicated he had an attitude that was poor, insight was lacking, and further retention was not recommended.  The applicant was not found to have any mental disease or defect sufficient to warrant disposition through medical channels.
   
   c.  From the onset of the applicant's assignment to the unit he had required constant and close supervision in order to insure minimal performance.  His lack of interest, poor appearance and attempt to habitually shirk his reasonable duties necessitated excessive counseling which did not result in any favorable improvement.  By his own admission, the applicant had been purposely creating minor infractions of good military discipline in order to be considered for separation for unsuitability with a general discharge in lieu of a more appropriate disposition.  He recommended the applicant be given an undesirable discharge.

10.  A Kimbrough Army Hospital Form 64 (Report of Medical Evaluation) shows the applicant was examined on 14 July 1967 and found to be medically qualified for retention in the military.

11.  On 2 August 1967, the separation authority approved the applicant's discharge as recommended and directed the issuance of an Undesirable Discharge Certificate.

12.  On 11 August 1967, the applicant was discharged accordingly and given an Undesirable Discharge Certificate.  He completed 10 months and 8 days of total active service.  His DD Form 214 shows the authority for separation as Army Regulation 635-212 and he was assigned Separation Program Number 386 (an established pattern of shirking).

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

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request.

2.  Although the applicant was given a profile regarding his back pain, he was determined to be qualified for duty.  A medical examiner found the applicant was afflicted with a multitude of psychosomatic symptoms based upon the incidental finding of scoliosis, which should not have produced the degree or quality of symptoms described.  He was described as an unstable individual who was not able to express any goal or desire in life.  The examiner recommended the applicant be promptly separated from military service. 

3.  The applicant's leadership indicated the applicant had established a pattern of shirking by excessively reporting to sick call and using his profile to escape required and reasonable duties.  His attitude and job performance were very poor and he required constant and close supervision in order to insure he maintained minimal dress and behavior standards.  By his own admission, the applicant had been purposely creating minor infractions of good military discipline in order to be considered for separation for unsuitability with a general discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record fully supports the reason and authority for his discharge.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading his undesirable discharge to a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20130021050



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ABCMR Record of Proceedings (cont)                                         AR20130021050



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