RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2007
      DOCKET NUMBER:  AR20060008753


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Rodney E. Barber              |     |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, in effect that he be discharged from the United
States Army Reserves (USAR).  The applicant also requests that both his
honorable discharges be changed to disability retirements.

2.  The applicant states, in effect, that he had a heart attack and that he
incurred a mental disorder while in the service.  He states that early
military records shows disclosure of consultations referring him to a
psychiatric ward for evaluation and treatment in 1970 and again in 1975.
The applicant also states that he notified the Army during his mustering
out that he had a heart attack while on active duty thus qualifying him for
a medical retirement.  He states that he was told he had been assigned to
the USAR upon release from active duty.  He further states that he
reenlisted and should have been medically retired again because his illness
was made worse during this active duty tour.  The applicant states that his
disabilities were incurred and aggravated during his military service.

3.  The applicant provides the following documents in support of this
application:

      a.  DD Form 214, with a separation date of 13 June 1971;

      b.  DD Form 214, with a separation date of 11 March 1975;

      c.  a eight page self authored statement;

      d.  VA Form 61-6796b (Rating Decision Continuation Sheet), dated 10
June  1991 and;

      e.  memorandum from Medical Department Activities, Fort Polk,
subject: Neuropsychiatric Service Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 November 1975, the date of his discharge.  The
application was received on 21 June 2006.

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 limitations 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's DD Form 214 shows that he enlisted in the Regular Army
on 4 November 1969.  He was awarded the military occupational specialty
(MOS) Cook (94B).  The highest rank he attained while serving on active
duty was Specialist (E-4).

4.  On 4 September 1970, the applicant was seen by the Headquarters, 3rd
Field Hospital, APO 96309 for a psychiatric evaluation.  The memorandum,
dated 14 September 1970, subject Report of Psychiatric Evaluation from the
applicant’s service medical records, submitted by the applicant, show that
he had been referred by the command for evaluation in connection with a
special medical inquiry.  The memorandum shows that the applicant denied
any emotional problems.  The applicant was given Valium for anxiety and did
not return for follow-up.  This memorandum also shows that the individual
met retention standards in accordance with Army Regulation 40-501
(Standards of Fitness), chapter 3 and there was no psychiatric disease or
defect that warranted disposition through medical channels.

5.  Excerpts from the applicant’s service medical records, show that he had
been treated for chest pains, including scratches over left shoulder and
back on
1 February 1971.  The records show that he was diagnosed with psychomatic
reaction localized to the musculoskeletal system.

6.  The applicant’s Report of Medical Examination-Separation Examination,
conducted on 12 June 1971, does not indicate that the applicant was
receiving treatment for a heart or mental disorder.

7.  Item 29 (Heart (Thrust, size, rhythm, sounds) of the applicant’s Report
of Medical History is checked “normal”.

8.  Item 42 (Psychiatric (Specify and personality deviation) of the
applicant’s Report of Medical History is checked “normal”.

9.  On 13 June 1971, the applicant was transferred to the United States
Army Reserves (USAR) Control Group to complete his service remaining
obligation.  He had completed 1 year, 7 months, and 10 days of active
service that was characterized as honorable.

10.  On 1 April 1973, the applicant was assigned to the USAR Control Group
upon completion of his active duty service.

11.  The applicant’s Report of Medical Examination-Enlistment Examination,
conducted on 12 November 1974, does not indicate that the applicant was
receiving any treatment for a heart or mental disorder.

12.  Item 29 (Heart (Thrust, size, rhythm, sounds) of the applicant’s
Report of Medical History is checked “normal”.

13.  Item 42 (Psychiatric (Specify and personality deviation) of the
applicant’s Report of Medical History is checked “normal”.

14.  On 13 November 1974, the applicant reenlisted in the Regular Army for
training and was assigned to the basic training brigade at Fort Polk,
Louisiana.  He was awarded the military occupational specialty (MOS)
Trainee (09B).  The highest rank he attained while serving on this active
duty tour was Private (E-2).

15.  On 26 February 1975, the applicant was seen by the Medical Department
Activity, Fort Polk, Louisiana for a psychiatric evaluation.  The
memorandum, dated, subject Neuropsychiatric Service Certificate from the
applicant’s service medical records, submitted by the applicant, show that
he received a Neuropsychiatric evaluation while an inpatient on the
Neuropsychiatric Service Ward.  The memorandum shows that this was the
applicant’s second admission, the first was a civilian psychiatric
admission for emotional problems prior to this first enlistment.  The
applicant was diagnosed with a character-behavior disorder, mixed type,
chronic, severe; manifested by inability to adapt to training,
inappropriate dependency, and manipulativeness, and impairment for further
active duty.  This memorandum concluded that the applicant would not be a
productive member of the Armed Forces and recommends that he be
expeditiously separated from the Service.

16.  On 11 March 1975, the applicant received a trainee discharge from the
Regular Army.  He had completed 3 months, and 29 days of active service
that was characterized as honorable.

17.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel from the Army.
Paragraph 5-33 of this regulation, in effect at the time, governed the
Trainee Discharge Program (TDP).  This program provided for the separation
of service members who lacked the necessary motivation, discipline, ability
or aptitude to become productive Soldiers or have failed to respond to
formal counseling.  The regulation essentially requires that the service
member must have voluntarily enlisted; must be in basic, advanced
individual training, on the job, or service school training prior to award
of a military occupational specialty and must not have completed more than
179 days of active on their current enlistment by the date of separation.
The regulation provided that Soldiers may be separated when they have
demonstrated that they are not qualified for retention due to failure to
adapt socially or emotionally to military life; cannot meet minimum
standards prescribed for successful completion of training because of lack
of aptitude, ability, motivation, or self-discipline; or have demonstrated
character and behavior characteristics not compatible with satisfactory
continued service.

18.  Army Regulation 635-40, paragraph 3-2b(2), provides that when a member
is being separated by reasons other than physical disability, his or her
continued performance of assigned duty commensurate with his or her rank or
grade until he or she is scheduled for separation or retirement creates a
presumption that he or she is fit.  This presumption can be overcome only
by clear and convincing evidence that he or she was unable to perform his
or her duties for a period of time 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.

19.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation
40-501 (Standards of Medical Fitness), as amended, provides the standards
for medical fitness for retention and separation, including retirement.
Soldiers with medical conditions listed in this chapter should be referred
for disability processing.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) provides that the medical treatment facility commander with
the primary care responsibility will evaluate those referred to him and
will, if it appears as though the member is not medically qualified to
perform duty or fails to meet retention criteria, refer the member to a
medical evaluation board.  Those members who do not meet medical retention
standards will be referred to a Physical Evaluation Board (PEB) for a
determination of whether they are able to perform the duties of their grade
and military specialty with the medically disqualifying condition.

21.  Title 38, United States Code, permits the DVA to award compensation
for disabilities which were incurred in or aggravated by active military
service.  The DVA can evaluate a veteran throughout his or her lifetime,
adjusting the percentage of disability based upon that agency’s
examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show a diagnosis of a heart attack
while the applicant was on his active duty enlistment.  Although the
records do not show a diagnosis of a heart attack, the applicant was
treated for psychomatic reaction localized to the musculoskeletal system
while he was in the service.

2.  Evidence of record shows that there was no psychiatric disease or
defect that warranted disposition through medical channels during the
applicant’s first enlistment.  Evidence of record also shows the applicant
was treated by a civilian psychiatrist prior to his second enlistment.  The
evidence of record finally shows that the applicant received the diagnosis
of a mental disorder while the applicant was assigned to the basic training
brigade during his second active duty tour.

3.  The applicant's medical condition existed prior to entrance on his
second active duty tour.  Therefore, he was properly discharged under the
provisions of DA Message DTG 011510Z, August 1973, subject:  Evaluation and
Discharge of Enlistees Before 180 Active Duty Days.

4.  There is no evidence of record and the applicant has not submitted any
evidence that he had a medical condition which would have warranted him
being considered by a Medical Evaluation Board (MEBD).  Without an MEBD,
there would have been no basis for referring him to a PEB.  Without a PEB,
the applicant could not have been issued a medical discharge or retired for
physical unfitness.

5.  In order to justify correction of a military record the applicant must,
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.

6.  Evidence of record shows that the permanent orders were published
releasing the applicant from the USAR ready reserves.  Therefore, the
applicant is not authorized to have his military records corrected to
reflect a disability retirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 March 1985, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 10 March 1988.  The
applicant did not file within the 3-year statute of limitations.  However,
compelling evidence shows that it would be in the interest of justice to
excuse failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_______  ________      _______ PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MKP_  ___LWR _  __REB __  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.




                                  ____Margaret K. Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR200600008753                          |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/15                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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