IN THE CASE OF:	

		BOARD DATE:	  8 October 2014

		DOCKET NUMBER:  AR20140002996 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was discharged for medical reasons instead of unfitness. 

2.  The applicant states he believes there was an error on his DD Form 214.

3.  The applicant does not provide any evidence. 

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's records show he was inducted into the Army of the United States on 8 July 1970 and he held military occupational specialty (MOS) 64A (Light Vehicle Driver). 
3.  Following completion of MOS training, he was reassigned to the 615th Engineer Company, Fort Carson, CO.  While there, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 1 April 1971, being absent without leave (AWOL) from 6 to 30 March 1971
* 18 June 1971, being AWOL from 1 to 15 June 1971
* 13 September 1971, being AWOL from 7 to 12 September 1971
* 20 September 1971, being AWOL on 19 and on 20 September 1971
* 11 November 1971, being AWOL from 25 October to 11 November 1971

4.  His record contains an extensive history of negative counseling by various members of his chain of command for infractions that included: 

* Multiple instances of AWOL
* Raggedy appearance and torn clothes
* Absence from appointed place of duty
* Unsatisfactory conduct and performance 

5.  On 22 October 1971, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his extensive misconduct and negative counseling.  He was provided with a copy of this bar but elected not to submit statement on his own behalf.  The bar was ultimately approved by the approval authority.  

6.  His records show he underwent a mental status evaluation in connection with his separation.  The mental status evaluation shows: 

* he had no mental defects sufficient to warrant separation under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for physical disability
* he was mentally responsible and able to distinguish right from wrong
* he had the mental capacity to participate in board proceedings
* he met retention standards prescribed in chapter 3 of Army Regulation  40-501 (Standards of Medical Fitness)
* he was cleared for administrative separation 

7.  On 15 December 1971, he signed a Statement of Medical Condition.  He indicated he underwent a separation medical examination more than 3 working days prior to his departure from place of separation and that there had been no change in his medical condition.


8.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a DD Form 214 that shows he was discharged under other than honorable conditions on 16 December 1971 under the provisions of Army Regulation 635-212, for unfitness (separation program designator code 28B).  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 3 months, and 10 days of creditable active military service during this period and he had multiple periods of lost time. 

9.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

10.  There is nothing in the applicant's records to show he suffered from an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty or warranted his entry into the Physical Disability Evaluation System. 

11.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:

* frequent incidents of a discreditable nature with civil or military authorities 
* sexual perversion
* drug addiction
* an established pattern of shirking
* an established pattern showing dishonorable failure to pay just debts

12.  Army Regulation 635-212 also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

13.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7b provides that 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.

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 office, grade, rank, or rating.  It provides for medical evaluation boards which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 16 December 1971 under the provisions of Army Regulation 635-212 by reason of unfitness.

2.  In the absence of evidence to the contrary and in view of his record of misconduct, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

3.  It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  This is evidenced by his multiple instances of NJP and AWOL.  

4.  Prior to separation, the applicant underwent a medical examination and a mental status evaluation and he was found medically qualified for separation.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention.

5.  A disability separation requires the presence of impairment (illness or injury) that was incurred while entitled to basic pay and renders a Soldier unable to perform the duties required of his grade and/or specialty.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.

6.  There is no evidence in his records and he provides none to show he suffered a mental or a physical illness that rendered him unable to perform the duties required of his grade and/or specialty.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

7.  The applicant's service was interrupted by his repeated misconduct, not by reason of any disability.  His chain of command deemed him unfit for military service.  Thus, the reason for his discharge was "Unfitness."  In view of the foregoing evidence, he is not entitled to a medical separation.

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)                                         AR20140002996





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ABCMR Record of Proceedings (cont)                                         AR20140002996



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