IN THE CASE OF:	

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080010244 


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 correction of type of his discharge to show medical disability instead of honorable discharge. 

2.  The applicant states, in effect, that he was in a psychiatric hospital for three weeks and that the doctor said he was suffering from schizophrenia. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 March 2002; a copy of Medical Record Report for the period 23 July 2004 through 11 August 2004; and a copy of his U.S. Army Reserve (USAR) Discharge Orders, dated 17 February 2005, 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 he enlisted in the USAR on 4 January 2001.  He was subsequently ordered to initial active duty for training (IADT), completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 54B (Chemical Operations Specialist).  He was honorably released from active duty to the control of his USAR unit on 1 March 2002.  

3.  The applicant submitted a copy of his medical record report that shows he was admitted to an unspecified medical facility on 23 July 2004 for symptoms of psychosis and dangerousness.  He underwent a mental status examination by a U.S. Air Force (USAF) medical officer who remarked that the applicant was diagnosed with schizophrenia.  Upon discharge on 11 August 2004, the applicant was cooperative, in a good mood, and he did not report any suicidal or homicidal thoughts.  The military doctor prescribed the applicant medications and recommended he follow up with a civilian psychiatrist.  The attending physician also stated that the applicant was unlikely to stay in the Army.

4.  On 6 October 2004, by memorandum, Headquarters, 63rd Regional Readiness Command (RRC), Los Alamitos, California, the Command Surgeon provided the applicant a Notification of Medical Disqualification.  This notification notified the applicant that a review of his medical records revealed he had a psychiatric disorder, a medical condition that disqualified him from retention in the USAR.  He was further notified to complete a Disposition Election Memorandum by indicating one of the following options:

	a.  transfer to the Retired Reserve, if eligible.

	b.  honorable discharge from the USAR; or

	c.  consideration by a non-duty related physical evaluation board (PEB).

5.  On 10 February 2005, the applicant subsequently acknowledged receipt of the notification of medical disqualification and requested an honorable discharge from the USAR.

6.  On 10 February 2005, the applicant’s immediate commander at the 176th Medical Group, Garden Grove, California, initiated discharge action against the applicant, in accordance with chapter 6 of Army Regulation (AR) 135-178, by reason of medical unfitness.

7.  On 15 February 2005, the applicant’s senior commander at the 176th Medical Group, Garden Grove, California, recommended approval of the applicant’s discharge by reason of medical unfitness.
8.  On 17 February 2005, Headquarters, 63rd Regional Readiness Command, Los Alamitos, California, published Orders 05-048-00033, honorably discharging the applicant from the USAR effective 17 February 2005 in accordance with AR 135-178 (Enlisted Administrative Separations).  

9.  AR 135-178 (Enlisted Administrative Separations) prescribes the policies for the separation of enlisted Soldiers from the Reserve Components. Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness. It requires, in pertinent part, that a Soldier be notified if he was determined to be medically disqualified for continued service in the USAR.  Along with the notification, the Soldier is required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options: 

	a.  request reassignment to the Retired Reserve in accordance with AR     140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying years;

	b.  request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15 year retirement);

	c.  request honorable discharge from the USAR; or

	d.  request an informal Medical Evaluation Board (MEBD)/ Physical Evaluation Board to review his medical records for a final determination of his medical fitness for retention.

10.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  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, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

11.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge narrative reasoning should be changed to medical disability was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged by reason of a physical disability. 

2.  The evidence of record confirms the applicant was found medically unfit by reason of a psychiatric disorder and that he was notified in accordance with the provisions of AR 135-178.  Accordingly, he acknowledged receipt of the notification of medical unfitness for retention and elected to be honorably discharged from the USAR, thus eliminating any possibility of a physical disability evaluation. 

3.  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.  Therefore, the applicant is not entitled to medical disability retirement.  He has not shown error, injustice, or inequity for the relief he is requesting.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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.




      _______ _   X_______   ___
               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)                                         AR20080010244





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ABCMR Record of Proceedings (cont)                                         AR20080010244



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