MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           17 June 1999
	DOCKET NUMBER:   AR1999021305

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his undesirable discharge be upgraded to a medical discharge.

APPLICANT STATES:  In effect, that he was unaware that he could file for veteran benefits even though he had an undesirable discharge.  He also states that he was attempting to obtain his medical records in order to request a medical discharge.  He further stated that he finally located a service officer who could assist him in obtaining his records.  He goes on to state his first enlistment was honorable and that he has been diagnosed with Post Traumatic Stress Disorder (PTSD).  He concludes by stating that he had PTSD in 1973; however, he was not diagnosed until after his discharge.  In support of his application he submits a copy of his DA Form 3647-1 (Clinical Record Cover Sheet), a copy of Standard Form 502 (Narrative Summary), a copy of a psychiatric evaluation from a civilian physician and a copy of his Social Security Claim.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered active duty on 18 May 1970 as a supply clerk.  He continued to serve until he was honorably discharged on 18 January 1971 in order to reenlist.  He reenlisted on 19 January 1971 as an aircraft maintenance apprentice.

In September 1971, the applicant began receiving numerous nonjudicial punishments (NJP) for instances of wrongful use of heroin, failure to go to his prescribed place of duty, and for being AWOL (48 days).

He was convicted by a summary court-martial on 26 February 1973 for being AWOL (40 days) from 21 December 1972 to 30 January 1973.  His sentence consisted of a forfeiture of pay and hard labor without confinement for 45 days.

Subsequently, the applicant was AWOL on several occasions during April through June of 1973 for a total of approximately 44 days.

The applicant’s DA Form 3647-1 shows that he sustained a self-inflicted wound with a razor blade at his home in Dallas, Mississippi, on 30 March 1972, while he was AWOL.  It also shows that competent authorities diagnosed him on 4 April 1973 as having (#1) a laceration of his left wrist, self-inflicted in a suicidal gesture, secondary to diagnosis #2.  Diagnosis #2 indicated that he had a depressive personality, chronic, severe and was returned to duty for separation under the provisions of Army Regulations 635-200, chapter 13.

The applicant underwent a mental evaluation on 10 May 1973 which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, his DD Form 214 shows that on 4 October 1973, he was discharged under the provisions of Army Regulation 
635-200, chapter 13, for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  He was furnished an Undesirable Discharge Certificate.  He had a total of 3 years, 1 month and 7 days of creditable service and had a total of 132 days of lost time due to AWOL.

The applicant’s medical records are unavailable for review by this Board.

There is no evidence or indication in the applicant’s records to show that he was diagnosed with PTSD during his enlistment.

The applicant applied to the Army Discharge Review Board (ADRB) on
18 December 1998.  However, that board was precluded from accepting his application due to its statute of limitations (15 years).  This Board accepted his application (DD Form 149, dated 18 December 1998).

Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness 
(frequent incidents of a discreditable nature with civil or military authorities).
When separation for unfitness was warranted, an undesirable discharge was issued by the separation authority.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member fit.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, chapter 4, Eligibility for Disability Evaluation, paragraph 4-3, provides that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  The commander exercising general court-martial jurisdiction over the soldier may abate the administrative separation. This authority may not be delegated.  A copy of the decision, by the general court-martial convening authority (GCMCA), must be forwarded with the disability case file to the physical evaluation board.  A case file may be referred in this way if the GCMCA finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions, or if other circumstances warrant disability processing instead of alternate administrative action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2.  The type of separation directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  While the applicant was diagnosed as having a depressive personality during his enlistment and not PTSD, his medical condition was not medically disqualifying/unfitting for retention at the time in accordance with Army Regulation 40-501.  Therefore, there was no basis to separate him for physical disability.

4.  The applicant did not have any medically unfitting disability, which required physical disability processing at the time of his separation.

5.  The applicant was discharged with a character of service under other than honorable conditions and issued an Undesirable Discharge Certificate, which made him ineligible for physical disability processing.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JLP_____  TAP_____  EWL____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021305	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990617	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19731004	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 191		
2.		
3.		
4.		
5.		
6.