IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080011901 


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, in effect, reconsideration of his earlier petition to change his general, under honorable conditions discharge (GD) to a medical discharge.

2.  The applicant states, in effect, that his GD should be changed to a medical discharge because he was not appropriately discharged based on a disabling mental/nervous condition and lung disease, for which he received a 100 percent (%) disability rating from the Department of Veterans Affairs (VA).  The applicant also contends that unlike what was indicated in the original Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), he passed his Skill Qualification Test (SQT) in September 1980, he is not a homosexual, and he was retired and not terminated from the United States Postal Service.

3.  The applicant provides the following documents in support of his application:  Medical Record Documents; VA Rating Decision, dated 21 January 1986; Deferred or Confirmed Rating Decision (VA Form 21-6789); Marriage Certificates; Divorce Decrees; Letter of Commendation, dated 25 October 1977;  Imjin Scout Insignia Certificate; Primary Noncommissioned Officer Course (PNCOC) Certificate; Sergeant (SGT) Promotion Orders; Certificate of Appreciation; and Office of Personnel Management Letter, dated 7 November 2002.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080005077 on 5 June 2008.

2.  During the original deliberations the ABCMR found no evidence confirming the applicant was hospitalized for a mental illness while serving in Korea, and indicated a mental status evaluation completed on the applicant on 14 October 1981, confirmed he was psychiatrically cleared for any administrative action deemed appropriate by his command.  The ABCMR also noted that the applicant was successfully employed with the United States Postal Service from July 1986 to August 2002, which further evidenced he was not medically unfit for retention in the Army at the time of his discharge in 1982.

3.  The applicant's military record shows he initially enlisted in the Regular Army on 12 July 1977, and that he held and served in military occupational specialties (MOSs) 11C (Indirect Fire Infantryman) and 94B (Food Service Specialist).  

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that he was last promoted to sergeant (SGT) on 12 January 1980, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to specialist four (SP4) on 28 March 1981, and to private/E-1 (PV1) on 27 August 1981.  It also shows he completed two tours in Korea, the first tour was from 19 November 1977 to 12 November 1978, and the second tour was from 5 April 1980 to 4 April 1981.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  28 March 1981, for wrongfully transferring various duty-free goods of some value to unauthorized persons; 21 August 1981, for willfully failing to physically test individuals at his SQT station and for willfully failing to take the SQT, by signing an official record known by him to be false, and for wrongfully wearing the insignia of a SGT from 11 May to 3 August 1981; and 3 December 1981, for being absent without leave (AWOL) from on or about 24 through on or about 30 November 1981.


6.  The applicant’s record also contains seven records of formal counseling issued between 24 April 1980 and 4 August 1981, which show he was formally counseled for a myriad of disciplinary infractions that included the following:  missing formation; fraudulently wearing the rank of a SGT and accepting pay for the same; failing to train subordinates; developing wrong superior/subordinate relationships; being disrespectful in language to his superior noncommissioned officer (NCO); communicating a threat to his superior NCO; disobedience; authorizing a pass to a Soldier after his squad leader had already denied him that privilege; and failing to secure his personal property.

7.  On 28 September 1981, a Suspension of Favorable Actions (FLAG) was imposed on the applicant based on his civilian confinement which began on 25 September 1981.

8.  On 14 October 1981, the applicant underwent a mental status evaluation.  The examining physician determined the applicant’s behavior and thought content was normal, that he was fully alert and oriented, that he had an unremarkable mood, that his thinking process was clear, and that his memory was good.  The examining physician finally concluded that the applicant was mentally responsible, met retention requirements and had the mental capacity to understand and participate in separation proceedings.

9.  On 12 November 1981, the unit commander notified the applicant of his intent to recommend his separation for unsuitability-apathy, under the provisions of Chapter 13, Army Regulation 635-200.  

10.  On 1 December 1981, the applicant consulted with legal counsel and was  advised of the basis of the contemplated separation action and its effects.  He was also advised of the rights available to him and of the effects of a waiver of those rights.  Subsequent to this counseling, the applicant waived consideration of his separation action by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit statements in his own behalf.  

11.  On 11 December 1981, the separation authority approved the applicant's discharge under the provisions of Chapter 13, Army Regulation 635-200, by reason of unsuitability and directed the applicant receive a GD.  On 3 February 1982, the applicant was discharged accordingly.  


12.  The separation document (DD Form 214) issued to the applicant on 3 February 1982, the date of his discharge, shows he held the rank of PV1 at that time and that he had completed a total of 4 years, 6 months, and 22 days active military service.  It also identifies the authority and reason for discharge, and the applicant authenticated the separation document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge.  

13.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB determined that the applicant’s discharge was proper and equitable, and it voted to deny his request on 19 September 1996.

14.  The applicant submits a Clinical Record/Radiographic Report dated 27 September 1977, which shows he sustained a head injury at the age of six or seven.  It also shows he exhibited combative destructive behavior on 25 September 1977, with no recollection.  This medical record also confirms a skull examination was normal.  

15.  The applicant submits a Chronological Record of Medical Care dated 26 September 1978, which indicates he was treated after an incident in the barracks during which he lost control.  He apparently went “crazy” in the barracks and could not be controlled by superiors.  The “Objective Data” portion of this document includes entries which show his “neuro” was grossly intact; he was oriented, and very cooperative.  He also provides a Medical Record/Consultation Sheet, dated 18 December 1980, which shows he was treated for an attempted suicide.  

16.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality.  Separation under these provisions was required when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  

17.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (APDES) according to the provisions of chapter 61, Title 10 of the United States Code (10 USC 61).  It sets forth the 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.  

18.  Paragraph 2-2b of the disability regulation states, in pertinent part, that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his request for an upgrade of his GD should be reconsidered based on his 100% disability rating from the VA and the evidence he provides has been carefully considered.  However, the evidence of record provides no evidence to suggest the applicant was suffering from a disabling mental or medical condition at the time of discharge that would have supported his separation processing through medical channels.  In addition, a mental status evaluation on file confirms the applicant was found to be mentally responsible and to have met medical retention/separation standards by competent medical authority during his discharge processing.  

2.  The evidence of record further confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of undistinguished service.

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 has failed to submit evidence that would satisfy this requirement or that would support amendment of the original Board decision in this case.  

4.  The applicant is advised that his impression that the ABCMR concluded he was terminated from his Postal Service employment and/or that he was homosexual is not correct.  The ABCMR came to no conclusion that he was terminated from his postal service employment or that he was homosexual, as he indicates in his current request.  The reference to his termination action from the Postal Service was simply a statement regarding what the VA rating decision he provided indicated.  The homosexuality reference was contained in the separation regulation cite used by the ABCMR, which provided for the separation of members for unsuitability, which included the sub-categories of both apathy and homosexuality.  This in no way infers the applicant was a homosexual.  


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 to amend the decision of the ABCMR set forth in Docket Number AR20080005077 dated 6 June 2008.




      _______ _  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)                                         AR20080011901



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ABCMR Record of Proceedings (cont)                                         AR20080011901



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