IN THE CASE OF:	  

		BOARD DATE:	        5 February 2009

		DOCKET NUMBER:  AR20080017212 


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, a medical discharge. 

2.  The applicant states, in effect, that he paid the Army $2,500 for an open release enlistment bonus and that he has an Army connected injury.

3.  The applicant provides information sheets on three medications 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 enlisted in the Regular Army on 22 August 1978 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).
3.  On 24 October 1980, court-martial charges were preferred against the applicant for missing movement through neglect, disobeying a lawful command, and breaking restriction (two specifications).  Trial by special court-martial was recommended.

4.  On 30 October 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an under other than honorable discharge certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an under other than honorable discharge.  He elected not to submit a statement in his own behalf.         

5.  On 4 November 1980, the separation authority approved the applicant’s request for discharge and directed that he be furnished a discharge under other than honorable conditions. 

6.  On 12 November 1980, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.  

7.  Accordingly, the applicant was discharged under other than honorable conditions on 17 November 1980 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served 2 years, 2 months, and 26 days of creditable active service.  

8.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his discharge.

9.  In support of his claim, the applicant provided information sheets on 
3 medications used to treat symptoms of certain types of mental conditions, depression, and symptoms of Parkinson's disease.

10.  On 6 May 1982, the Army Discharge Review Board denied the applicant's request for a general discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

DISCUSSION AND CONCLUSIONS:

Although the applicant contends that he has an Army connected injury, there is no evidence of record to show he was ever medically unfit to perform his duties.  In addition, he was found qualified for separation on 12 November 1980.  Therefore, there is no basis for a medical discharge.

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)                                         AR20080017212



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ABCMR Record of Proceedings (cont)                                         AR20080017212



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