| Mr. Carl W. S. Chun | Director | |
| Mr. W. W. Osborn, Jr.. | Analyst |
| Ms. JoAnn H. Langston | Chairperson | |
| Mr. Roger W. Able | Member | |
| Mr. Walter T. Morrison | Member |
APPLICANT REQUESTS: In effect that his separation for physical disability that existed prior to service (EPTS) be changed.
APPLICANT STATES: In effect, that new evidence disputes all discharge claims. He desires to appear before the Board. In block 11a (date of discovery of alleged injustice the applicant wrote, “Review if records-improvement in mental condition.” In block 11b (rationale as to why the Board should waive the failure to timely file and consider the merits of the case) he wrote, “Past incident not a reflection of mental status in present. Family and others unaware of why it happened this way.”
EVIDENCE OF RECORD: The applicant's military records show:
The applicant’s application (DD Form 149) was not entirely clear and it was initially closed because the staff could not determine exactly what correction the applicant desired. In subsequent correspondence, the applicant requested that his discharge be changed to an “entry level separation (ELS) or reserve status.” That those issues were closed without action with a letter to the effect that the applicant was not eligible for ELS and that there was no valid reason or authority for separation for “Reserve status.”
Currently the applicant states that he does not understand why he is not entitled to a hearing.
He enlisted and entered active duty on 10 November 1987 at the age of 21 years and 4 months. He completed training as an air defense operations intelligence assistant; completed an unaccompanied tour of duty in Korea, where he was advanced to pay grade E-4; and was stationed at Fort Stewart, Georgia in May 1989.
The applicant was hospitalized and diagnosed with undifferentiated type schizophrenia. He revealed a history of pre-service hospitalization with a similar diagnosis. A medical evaluation board (MEB) found his condition to be unfitting, to be EPTS and to have not been aggravated by the period of service. The board recommended separation for non-aggravated EPTS physical disability. The applicant was informed of the MEB findings and recommendations and concurred. He was informed of his rights, including the right to have his case considered by a physical evaluation board (PEB). On 18 December 1989 the applicant waived a PEB and requested expeditious discharge. The request was approved and the applicant was separated with an honorable discharge on 21 December 1989.
There is no statutory or regulatory right to a formal hearing. The Board receives over 15,000 applications each year, but normally grants fewer than fifteen formal hearings a year. Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.
Army Regulation 635-40 sets forth the policy and procedures for physical evaluation for retention, retirement or separation. Chapter 5 provides for the separation of non–aggravated EPTS conditions when a soldier waives consideration by a PEB.
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.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation provides for the separation of personnel in an ELS for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment. These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty. An uncharacterized separation is mandatory under this chapter.
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. Considering all the circumstances of the case the Board finds it in the interest of justice to waive the failure to file an application within the three-year limit and to consider the case on the merits.
2. The applicant's disability separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.
3. The applicant had served more that 180 days and was not eligible for an uncharacterized ELS separation.
4. There is no known valid reason or authority for separation of a soldier from active duty for “Reserve status.” Additionally, the applicant’s EPTS condition, that would have precluded his entry into the service had he reported the true nature of his medical history, not only necessitated his separation from active duty it also disqualified him for service in a reserve component.
5. The applicant’s case is not so complicated or unusual that only original testimony at a personal appearance would enable the Board to reach a correct and equitable decision.
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 this 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
________ ________ ________ DENY APPLICATION
| CASE ID | AR2001064097 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20020314 |
| 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. | 108.04 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2009 | 20090013365
The applicant requests that her physical evaluation board (PEB) findings be corrected to show she was found unfit under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5289 and 5288, that her disability rating be corrected to show 50 percent, and that she be medically retired due to her increased disability rating. She was rated under the VASRD and given a 10-percent disability rating for codes 5299-5295. Records provided by the VA indicate the applicant...
ARMY | BCMR | CY2001 | 2001059667C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. These personnel will be granted an uncharacterized discharge, unless they are being discharged for misconduct wherein a discharge under other than honorable conditions is warranted. Army Regulation 635-40, paragraph 3-2, specifies that a presumption will be made that a soldier was in sound physical and mental condition upon entering active service except for physical...
ARMY | BCMR | CY2004 | 20040009187C070208
Her present condition was further aggravated by the medical retention on active duty for 1 1/2 years after treatment. The evidence of record shows the applicant was given a MEB and PEB and diagnosed with AVM, a congenital condition. As such, her medical problems resulting from hemorrhaging and treatment lead the PEB to determine that the applicant had the condition prior to her entry on active duty.
ARMY | BCMR | CY2011 | 20110021459
In his previous request he specifically requested on his DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) to appear before the Army Board for Correction of Military Records (ABCMR) along with a Veterans of Foreign Wars representative, if available. The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. There is no evidence of...
ARMY | BCMR | CY1997 | 9710210
APPLICANT REQUESTS: That her military records be corrected to show that she was separated from active duty by reason of physical disability. On 14 June 1994 she submitted an application to this Board requesting that her separation document (DD Form 214) reflect the dates that her unit served in the Persian Gulf. Accordingly, there is no basis on which to grant counsel’s request to show that she was promoted to pay grade E-5 at the time of her separation from active duty.
ARMY | BCMR | CY1995 | 9508236C070209
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. APPLICANT STATES: That he...
ARMY | BCMR | CY2006 | 20060008410
Item 9, Block g (Remarks) of the DD Form 261 shows, in pertinent part, that while participating in a Field Training Exercise (FTX) during Annual Training (AT), on order of the battalion commander, the applicant was transported to Camp Shelby Hospital for an evaluation due to several problems, including stress during the FTX. The applicant's military service records are absent a report of any medical evaluation board (MEB) or physical evaluation board (PEB) proceedings. The evidence of...
ARMY | BCMR | CY2002 | 2002078065C070215
He has indicated to me that he will take medication if he has to." Chapter 4 of that regulation provides the conditions under which Army Reserve officers may be discharged from their status as Reserves of the Army. As such, if the applicant was considered by an MEB and PEB, all indications are that he would have been separated without disability benefits.
ARMY | BCMR | CY2008 | 20080014753
On 5 February 1992, the applicant's case was evaluated by a formal PEB that convened in Washington, D.C. On 1 September 1993, a MEB convened at Wright-Patterson Air Force Base, Ohio, and again evaluated the applicant's case based on the return of his bipolar disorder condition. The United States Army Physical Disability Agency (USAPDA) reviewed the applicant's case, the PEB findings and recommendations, and after careful consideration of all the medical evidence, denied the applicant's PEB...
AF | PDBR | CY2009 | PD2009-00269
His neck and shoulder pain and numbness and weakness in both upper extremities, right greater than left, continued and he was unable to work in his civilian job in the lumber mill after he was released from active duty in late November 2006. The Informal PEB determined in January 2008 that he was unfit for continued military service and he was then separated with a combined total of 20% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Air Force...