IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150009990 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150009990 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150009990 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 he be medically retired. 2. The applicant states he was in good mental and physical health before he was drafted in 1956. When he was discharged in 1957 his health was ruined and he was never the same again. 3. The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), General Discharge Certificate. seven letters of support, and 62 pages of medical documents. 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. A request for the applicant's personnel file from the National Personnel Records Center failed to locate any records for the applicant. 3. The applicant served on active duty from 9 August 1956 through 28 February 1957. He was discharged with a general discharge with a Separation Program Number (SPN) 469 – unsuitability – character or behavior disorder. 4. The medical documents provided cover the period from 8 October 2013 through 21 May 2015 with a history of hypothyroidism, kidney stones, asthma, emphysema, depression, anxiety, back pain, joint pain, hyperlipidemia, Chronic obstructive pulmonary disease, hypertension, arthritis, hyperglycemia, eye surgery, and an appendectomy. They do not refer to any medical evidence or diagnoses dating from his period of service. 5. On 9 February 2016 the U.S. Army Physical Disability Agency Legal Advisor provided an advisory opinion. He stated that the applicant has provided no evidence to support his claim that he had a condition that did not meet medical retention standards at the time of his of his discharge. 6. A copy of the opinion was forwarded to the applicant. There is no evidence of any additional statements or documentation provided by the applicant. REFERENCES: 1. 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 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. 3. Army Regulation 40-501 provides medical fitness standards for retention and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects that render individuals unfit for further service. Personality disorders [formerly called character and behavior disorders] may render individuals administratively unfit rather than unfit due to physical disability. Interference with effective performance of duty in association with these conditions is to be dealt with through appropriate administrative channels. 4 Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, and chronic alcoholism. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. 5. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant was discharged for unsuitability due to a character and behavior disorders. Character and behavior disorders are to be considered to render an individual administratively unsuitable rather than unfit because of physical disability. 2. The applicant has not provided any evidence to overcome the presumption of administrative regularity in his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009990 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009990 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2