MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           1 March 2000                   
	DOCKET NUMBER:   AR1999028228

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr.  John Saputo 		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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:  In effect, physical disability retirement or discharge.

He states that his discharge under honorable conditions should be changed to a medical discharge.  He should have been diagnosed as paranoid schizophrenic, and as having a psychotic disorder.  He states that he is dying of hepatitis A, and has been in a mental health institution since 1988.  

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant entered the Army on 2 January 1973, completed training, and in May was assigned to an artillery unit in Germany.

On 6 November 1973 the applicant received nonjudicial punishment under   Article 15, UCMJ, for failure to obey a lawful order, and disobedience of a lawful command.

On 7 December 1973 the applicant received nonjudicial punishment for failure to obey a lawful order.

On 2 April 1974 before a special court-martial which convened at Giessen, Germany, the applicant was arraigned, tried, and pled guilty to five counts of assault.  He was sentenced to confinement at hard labor for 100 days. 

In a 24 June 1974 evaluation, a social worker at the Army Retraining Brigade at Fort Riley, Kansas stated that the applicant had a history of assaultive type behavior and adjustment problems in school, and that he had numerous conflicts in his family and in school situations, to include traumatic experiences as a result of his family breaking up and his being shuttled back and forth.  He attempted to unrealistically handle stress by bottling it up and when things get unbearable for him his only recourse was assaultive type behavior.  Although there were only mild signs of an explosive and emotional disorder, there were ample dysfunctional traits associated with immaturity and feelings of inadequacy.  He controlled his behavior because of fear.  He was easily led by others and responded to peer pressure over and above that pressure exerted by senior officials.  The military, as a home, had failed him.  He was unable to adjust and has found himself in an environment more hostile and negative than the one he left behind.  His chances for rehabilitation at the Retraining Brigade and the prognosis for continued constructive duty were extremely poor.  There appeared to be no evidence of psychosis, neurosis, or other disorders which would require referral for psychiatric treatment.  It was believed that he would not adjust to the military setting, that his potential for return to duty was minimal, and further rehabilitative effort would prove non-productive.  He was mentally competent to participate in board proceedings.  He was diagnosed as having an immature personality, with features of inadequacy.  That person recommended that the applicant be separated as unsuitable because of a character and behavior disorder.

A 27 June 1974 report of mental status evaluation indicates that the applicant had no significant mental illness, was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to participate in board proceedings.  He met the medical standards for retention in the Army.

A 27 June 1974 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he felt good.

On 1 July 1974 the applicant’s commanding officer recommended that the applicant be discharged from the Army for unfitness, under the provisions of Army Regulation 635-200, paragraph 13-5.  That official stated that the applicant was unfit because of frequent incidents of a discreditable nature and illegal possession of a controlled substance (marijuana).  He stated that the applicant had been sent to the brigade for correctional training and treatment necessary to return him to duty; however, his actions since his arrival precluded accomplishment as evidenced by his behavior, attitude and ability.  The applicant had demonstrated a disregard for military authority and indicated little desire to return to duty.  He had received counseling, but had not responded to the counseling.  He had the mental and physical ability necessary to be an effective soldier, but his record indicated he should not be retained.  He did not meet the criteria for further rehabilitative attempts.

The applicant stated that counsel had advised him of the basis for the contemplated action to discharge him for unfitness, its effects, and the rights available to him.  He requested consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He declined to submit statements in his own behalf. 

On 19 July 1974 a board of officers met to determine whether the applicant should remain in the Army or be administratively separated.  The applicant was present and was represented by counsel.  The board found that the applicant had demonstrated the ability to perform military duty in a satisfactory manner, but his ability to perform satisfactorily was limited to a highly structured environment. He was unsuitable for further military service because of a character and behavior disorder with features of immaturity.  The board recommended that the applicant be eliminated for unsuitability and issued a General Discharge Certificate. 

On 2 August 1974 the separation authority approved the recommendation of the board.  He was discharged on 5 August 1974 at Fort Riley.  He had 1 year,         2 months, and 1 day of service, and 153 days of lost time. 

On 16 May 1988, the Army Discharge Review Board determined that the applicant’s character and behavior disorder was only one factor in the discharge process, and the applicant’s diagnosis was improper in that it was accomplished by a social worker, and not a physician trained in psychiatry.  The majority of the board found the reason for his discharge as improper and voted to change the reason to unsuitability – apathy.  The majority of the board also voted to deny the applicant’s request to upgrade his discharge to honorable.

A 13 December 1994 psychiatric evaluation indicates that the applicant’s condition was diagnosed as schizophrenia, paranoid, chronic; cocaine abuse, in institutional remission; personality disorder, with antisocial and paranoid traits; hepatitis A; hepatitis C; and elevated liver enzymes; among other conditions.  The examining psychiatrist stated that the applicant was cooperative with treatment, understood some of the basis of his illness, although used denial to deal with previous behavior, and that he had no assaults while in prison other than early on, more than one year ago.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and unsuitability.   Paragraph 13-5b (1) provided for the separation for unsuitability for inaptitude, applicable to persons who are best described as inept, due to a lack of general adaptability, want of readiness of skill, unhandiness, or inability to learn; paragraph 13-5b(2) provided for the separation for unsuitability for character and behavior disorders, disorders of intelligence as determined by medical authority, when such disorders are chronic and recalcitrant to attempts at rehabilitation and interfere with the serviceman’s ability to adequately perform his duties; and paragraph 13-5b (3) provided for the separation for unsuitability of those individuals because of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or nondisabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 635-40 and related regulations is no bar to discharge for unsuitability.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

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 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, 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 unfit.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 August 1974, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 5 August 1977.

The application is dated 23 May 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___mmd_  ___js____  ___gdp__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999028228	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000301	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.	142.00	
3.		
4.		
5.		
6.