RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 August 2005 DOCKET NUMBER: AR20050001228 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. Wanda L. Waller Analyst The following members, a quorum, were present: Mr. John Slone Chairperson Ms. Deborah Jacobs Member Mr. Michael Flynn Member 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 that his general discharge be upgraded to honorable or a medical discharge. He also requests that his narrative reason for separation be removed from his records. 2. The applicant states, in effect, he was mentally and physically injured during his active duty service and when he was released he did not realize how sick he was. He contends that fatigue was a major factor in his going absent without leave (AWOL). He contends that his mental and physical conditions have been established by Department of Veterans Affairs (DVA) hospitals all around the nation and his conditions are recognized as a factor for job disability during and after government service. 3. The applicant provides a DVA psychology evaluation, dated 25 March 2004. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 11 June 1982. The application submitted in this case is dated 16 January 2005. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant enlisted on 1 August 1979 for a period of 4 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 13B (cannon crewman). 4. On 12 April 1980, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and using disrespectful language toward his superior noncommissioned officer. His punishment consisted of a reduction to E-3, a forfeiture of pay, restriction, and extra duty. 5. On 24 February 1982, nonjudicial punishment was imposed against the applicant for being AWOL from 3 February 1982 to 15 February 1982. His punishment consisted of a reduction to E-3, a forfeiture of pay, and extra duty. 6. The applicant's Personnel Qualification Record, Part 1, prepared on 3 April 1982, shows his physical profile factors as 112111. 7. On 22 April 1982, nonjudicial punishment was imposed against the applicant for disobeying a lawful order. His punishment consisted of a forfeiture of pay, restriction, and extra duty. 8. On 24 May 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention. The unit commander cited the applicant's poor attitude and lack of motivation. 9. On 25 May 1982, the applicant consulted with counsel and acknowledged that he had been advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 5. He also acknowledged that if he were issued a general discharge he might expect to encounter substantial prejudice in civilian life and he elected not to make a statement on his own behalf. 10. On 1 June 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge. 11. Accordingly, the applicant was discharged on 11 June 1982 with a general discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention. He had served 2 years, 9 months and 27 days of total active service with 14 days of lost time due to AWOL. 12. Item 28 (Narrative Reason for Separation) on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry, "Failure to maintain acceptable standards for retention." 13. There is no evidence in the available records which shows the applicant was diagnosed with any mental or medical condition prior to his separation on 11 June 1982. 14. The applicant provided a DVA psychology evaluation, dated 25 March 2004, which shows he was granted 30 percent service connected disability compensation and was diagnosed with schizoaffective disorder, post traumatic stress disorder, cocaine dependence, alcohol dependence, and cannabis abuse. 15. On 21 June 1983, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade to honorable. 16. Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge (This requirement was deleted with interim change 4 dated 1 April 1982). Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude. A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. 17. Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 18. 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. 19. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, or rank. It 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 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 indicates that a Soldier is fit. 20. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P- physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. 21. 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 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's record of service included three nonjudicial punishments and 14 days of lost time. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge. 2. Although the applicant contends that he was mentally and physically injured during his active duty service, he was found qualified for separation with a physical profile of 112111 by competent medical authorities. There is no medical evidence of record that shows the applicant had any mental or medical condition prior to his discharge on 11 June 1982. There is also no evidence of record to show he was ever medically unfit to perform his duties. Therefore, there is insufficient evidence to show the applicant was eligible for physical disability processing and there is no basis for a medical discharge. 3. The DVA does not fall under the purview of this Board or the Department of Defense. The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit. 4. The narrative reason for separation used in the applicant’s case is correct and there is no basis for removing it from the applicant's DD Form 214. 5. Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 21 June 1983. As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 20 June 1986. 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 FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING JS_____ DJ______ MF______ 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. __John Slone__________ CHAIRPERSON INDEX CASE ID AR20050001228 SUFFIX RECON DATE BOARDED 20050811 TYPE OF DISCHARGE GD DATE OF DISCHARGE 19820611 DISCHARGE AUTHORITY AR 635-200 Chapter 5 DISCHARGE REASON Expeditious Discharge Program for failure to maintain acceptable standards for retention BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 144.0000 2. 110.0200 3. 4. 5. 6.