IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080006319 


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 an upgrade of his discharge and correction of the narrative reason for separation to show he was discharged for medical disability. 

2.  The applicant states that he was sick at the time of discharge and could not function normally or present his situation or explain his actions to his superiors.

3.  The applicant provided a copy of his DA Form 3822-R (Report of Mental Status Evaluation), dated 23 February 1995; and a copy of his DA Form 4856 (General Counseling Form), dated 1 March 1995, in support of his application.  He did not provide any additional documentary evidence in support of his application.

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.  The applicant's records show that he initially enlisted in the Missouri Army National Guard (MOARNG) on 12 August 1993.  He was subsequently ordered to active duty for training (ADT), completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 63G (Fuel and Electric Systems Repairer).  

3.  The applicant's records also show that he enlisted in the Regular Army for a period of 3 years on 2 February 1995 and proceeded to Fort Benning, Georgia, for infantry training.

4.  On 23 February 1995, the applicant was admitted to the Inpatient Psychiatry Service, Martin Army Community Hospital, Fort Benning, Georgia, because of psychotic content and suicidal ideation.  The military chief of Inpatient Psychiatry remarked that the applicant was diagnosed with a psychotic episode and that his episode was resolved.  He further noted that the applicant met retention standards and did not possess a psychiatric disease or defect that warranted disposition through medical channels.  The chief further stated that the applicant's psychotic episode was not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification.  He also stated that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the Army would be successful; and that his disorder was so severe that his ability to function effectively in the military was significantly impaired.  The chief concluded that the applicant did not meet mental soundness standards and that he was cleared for any administrative action by his chain of command.

5.  On 28 February 1995 the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 11-2 of Army Regulation 635-200 (Personnel Separations), by reason of failure to meet and maintain the standards expected of an infantry Soldier and his inability and/or his unwillingness to adjust due to his inability to adapt.

6.  On 28 February 1995, the applicant acknowledged receipt of the notification of separation memorandum.  He elected to consult with military counsel and to make a statement on his own behalf, but declined a separation medical examination. 

7.  On 6 March 1995, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph 11 of Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of his discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood that if his discharge was approved he could encounter substantial prejudice in civilian life. 

8.  On an unknown date between 6 March 1995 and 13 March 1995, the separation authority approved the applicant's discharge with an entry level separation (uncharacterized) character of service.  Accordingly, the applicant was discharged on 13 March 1995.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed 1 month and 12 days of creditable active military service.  Item 28 (Narrative Reason for Separations) of his DD Form 214 shows the entry, “Entry Level Performance and Conduct."

9.  There is no indication in the applicant's records that he was issued a permanent physical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB) during his 1 month and 12 days of military service.

10.  On 7 March 2008, the Army Discharge Review Board denied the applicant's request for a change in the character and/or reason of his discharge. 

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states in pertinent part that when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Can not or will not adapt socially or emotionally to military life, can not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline;  have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

12.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It states in pertinent part that an Uncharacterized Separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization Under Other Than Honorable Condition is authorized under the reason for separation and is warranted by the circumstances of the case or when The Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Paragraph 3-1 provides that the mere presence of 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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

15.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation 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.  The regulation also states that, when a Soldier is being processed for separation or retirement 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 creates a presumption that the Soldier is fit. 








DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's discharge, the evidence of record shows that the applicant demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Furthermore, having completed less than the 180 days of military service, his character of service was appropriately and accurately reflected as uncharacterized.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his military service at that time.  

2.  With respect to the applicant's contention that his discharge narrative reasoning should be changed to medical disability, there is insufficient evidence to show he should have been medically discharged by reason of disability.  There is no evidence that he was issued a permanent profile or that he underwent an MEB and/or a PEB.  The Army must find that a Soldier is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

3.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.   The applicant has not shown error, injustice, or inequity for the relief he requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



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               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.

ABCMR Record of Proceedings (cont)                                         AR20080006319



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ABCMR Record of Proceedings (cont)                                         AR20080006319



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