RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070012140 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 the reason for his honorable discharge be changed to physical disability.

2.  The applicant states, in effect, that he did not want the stigma of being mentally incompetent at the time of his discharge.  Now, he wants 100 percent medical disability.  He further states that he has been raising two children on $640.00 per month, as well as his mother who has no income.

3.  The applicant provides no additional documentation.

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.  On 23 March 1982, the applicant enlisted in the Regular Army.  He was assigned to the 1st Training Brigade, Fort Jackson, South Carolina, for basic combat training.

3.  On 12, 21, and 24 April 1982, the applicant was counseled about his poor performance in training and lack of motivation.  On 4 May 1982, he was counseled about the possibility of having a mental problem.   

4.  On 4 May 1982, the applicant was referred to the community Mental Health Activity where it was recommended that he be pulled from all training and discharged as soon as possible.   

5.  On 10 May 1982, the applicant was counseled by the company commander about his mental progress and actions.  He continued to stare into space, make strange gestures, assume karate stances, make strange noises, and talk to himself.  The commander stated that the applicant would not become a productive Soldier with actions of this nature and strongly recommended his discharge as soon as possible.  The applicant responded to this counseling by saying that he was in perfect mental health.  He stated that he missed very little in the way of training and was ready to answer any relative questions.  He always tried to be respectful of his superior officers and to be attentive.  He contended that he doubled or tripled his physical training output and was commended by a lieutenant for his performance of guard duty 3 weeks earlier.  He felt fit, willing, and able to perform his duties and to fulfill his obligation.

6.  On 13 May 1982, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-33 (Trainee Discharge program) for poor duty performance and strange attitude.   The applicant did not desire to request counsel and elected not to make a statement in his own behalf.  He did request a separation medical examination.

7.  The applicant's separation medical examination is not available for review.

8.  On 28 May 1982, the appropriate authority approved the recommendation and directed that he be issued an Honorable Discharge Certificate.

9.  Accordingly, he was discharged on 4 June 1982.  He had completed 2 months and 12 days of creditable active service.  His character of service was honorable. 

10.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-33 of that regulation provided for the expeditious separation of members in basic combat training, or in military occupational specialty training who lack the necessary motivation, discipline, ability, or aptitude to become productive Soldiers, who have completed no more than 179 days of active duty or initial active duty for training.

11.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.





DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  There is no available evidence showing that the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.   Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ JEV___  __TMR__  __JCR _ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



__      _James E. Vick _____
          CHAIRPERSON


INDEX

CASE ID
AR20070012140
SUFFIX

RECON
 
DATE BOARDED
 20080122
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
145
2.

3.

4.

5.

6.