RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 MARCH 2004                  
	DOCKET NUMBER:   AR2003090643

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert J. Osborn II		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, an honorable discharge by reason of disability.

2.  The applicant states that he have should been medically retired or discharged because of anxiety and psychiatric problems.  He states that they did not know anything about mental illness or retardation at the time he was discharged.  He contends that his general discharge was no different than one given to an individual who was court-martialed and that he was treated just like individuals who had committed serious offenses.

3.  He states, in effect, that he only broke a few rules and paid for those offenses. He argues, in effect, that his mental condition should have been recognized as the basis for his inability to meet military standards.

4.  The applicant provides only his self-authored statement in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
21 January 1955.  The application submitted in this case is dated 24 May 2003.  

2.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

3.  The applicant’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

4.  The applicant submitted a previous request to the Board to have his general discharge upgraded to fully honorable.  The Board denied that request on 
6 March 2003.

5.  Information available to the Board indicates that the applicant served on active duty between 11 January 1954 and 21 January 1955.  His separation document indicates that he enlisted for a period of 3 years, was just shy of his 18th birthday at the time of enlistment, and had 7 years of formal education.  He was trained as an infantryman.

6.  In August 1962 the Army Discharge Review Board denied the applicant’s petition to upgrade the characterization of his discharge to fully honorable.  The Army Discharge Review Board summary notes that the applicant had a physical examination in February 1954 and January 1955.  The January 1955 examination showed the applicant had a permanent S-3 profile as a result of “emot instab react [emotional instability reaction].”  

7.  That same summary indicated that the applicant had received excellent conduct and efficiency ratings while undergoing training but after arriving at his first duty station in Alaska it was determined that he could not understand the simplest orders or instructions and was unable to keep his weapon clean and his personal appearance up to standards.  At one point, according to the Army Discharge Review Board summary, the applicant received an unsatisfactory efficiency rating with the notation that he had a bad attitude.

8.  Sworn testimony by members of his chain of command indicated that the applicant was counseled repeatedly.  In his own statement the applicant indicated that he wanted to be a soldier but could not get along, he had trouble remembering what he was told to do, and thought it would be better if he got out of the Army and tried to go back to school.

9.  The applicant was ultimately recommended for an administrative discharge for unsuitability under the provisions of Army Regulation 619-369 and discharged with a characterization under honorable conditions.

10.  Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, is evidence that the soldier is fit.  There must be a 

causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  

11.  Army Regulation 615-369, then in effect, provided the policy and procedures for the administrative separation of enlisted personnel for inaptitude, unsuitability (which meant a lack of the required degree of adaptability) or enuresis.  The regulation could not be applied to persons who had any disqualifying mental or physical defect.  An individual discharged for inaptitude or unsuitability was furnished a general discharge certificate.

DISCUSSION AND CONCLUSIONS:

1.  Although information available to the Board does indicate that medical officials did recognize at the time that the applicant may have been suffering from a reaction disorder, there is no evidence, and the applicant has not provided any, that he had any unfitting disorder which warranted referral for disability processing.

2.  The evidence indicates that the applicant was unable to adapt to the standards of military life, and as such was appropriately administratively discharged. 

3.  His argument that the general discharge is no better than that received by individuals who were court-martialed is without foundation.  The applicant’s discharge was administrative, while individuals discharged as a result of court-martial actions received punitive discharges. 

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration in August 1962 when the Army Discharge Review Board completed its action, therefore, the time for the applicant to file a request for correction of any error or injustice expired in August 1965.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RWA__  __LDS __  __RJO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		_____Roger W. Able______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090643	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040318	
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.	108.00	
2.		
3.		
4.		
5.		
6.