IN THE CASE OF:	  

		BOARD DATE:	  	  19 March 2009

		DOCKET NUMBER:  AR20080019137 


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, correction of his records to show he was honorably retired based upon permanent disability with a disability rating of
100 percent.

2.  The applicant states, in effect, he was discharged under honorable conditions under the Expeditious Discharge Program (EDP) for failure to maintain acceptable standards for retention.  He also states that this should be changed to show he was separated based on mental disability rated at 85 percent and physical disability rated at 15 percent.

     a.  The applicant states that the narrative reason for his separation is in error and unjust because at the time of his enlistment it was unknown to him that he was suffering major depression, personality disorder, and post traumatic stress disorder (PTSD).  Consequently, shortly after his enlistment, he began exhibiting inappropriate behavior, conduct, and acts that resulted in his erroneous discharge.  He also states this was unjust because he was not checked out by a mental health professional.  The applicant adds that he also suffered from foot problems, which he first experienced and discovered while at basic training, and he never received medical treatment for this condition.

     b.  In the applicant’s self-authored unsworn declaration, the applicant states, in pertinent part, that his enlistment into full military service “seriously aggravated his mental condition to the point of his staying way beyond self-medicated in alcohol and some prescribed pain medication.”

         (1)  He states that at one point he attempted suicide by overdosing with alcohol and prescribed drugs, and was taken to the local hospital in Giessen, West Germany.  He also states that his alcohol abuse due to his mental health problems continued to escalate during the term of his enlistment and adversely affected his duty performance.  He further states that at no point during his military service did his superiors ever refer him for a mental health consultation and evaluation.

         (2)  He states that his mental health problems continued after he was discharged from the Army.  He adds that he was under the care of a psychologist or psychiatrist after becoming physically disabled on 1 January 1990 and sometime in 1990, for the first time, it was discovered that he suffered from major depression.

         (3)  He states that he came to the Texas Department of Criminal Justice on 3 March 1999 and, at some point, he began treatment under the care of the mental health staff and is still under their care to this date.

         (4)  He states that his foot problems first began in the military, continued during his entire military service, and continued after his discharge.  He also states that his foot problems were seriously aggravated by the fact that both of his duty assignments (i.e., Light Wheel Vehicle Power Generator Mechanic and Unit Police (UP)) required him to be on his feet causing significant pain.  He adds that the prescribed pain medication did not treat his problem, but only aggravated his depression and resulted in him self-medicating himself.  He adds that the military never considered this disabling condition as cause for discharge.

         (5)  He states that the Social Security physicals and evaluations and Department of Criminal Justice records document his foot problems, but are not at his disposal.  He adds that the military has records, beyond those that he provides in support of his application, which he asserts are authentic copies of the original records.

3.  The applicant provides a 5-page, self-authored unsworn declaration, dated
6 November 2008; copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 18 March 1982; AE Form 113-4-R (Record of Informal Counseling Session), dated 4 January 1982;
DA Form 2496 (Disposition Form), dated 6 January 1982, subject:  Return of UP; AE Form 113-10-R (Notification of Pending EDP Discharge and Acknowledgement), dated 10 February 1982 with Headquarters, H2 Battery,
2nd Battalion, 2nd Air Defense Artillery (Germany), 1st Endorsement, undated, subject:  Recommendation for Elimination Under the Provisions of Paragraph
5-31, Army Regulation 635-200 [Applicant’s Name, Rank, and Social Security Number]; DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice], date indistinguishable; five Standard Forms (SFs) 600 (Chronological Records of Medical Care), covering the period 6 February 1981 to 19 January 1982 (9 pages); SF 513 (Clinical Record), dated  16 March 1981; AEM Form 318-R (Dental Patient Health Questionnaire), dated  6 July 1981; and SF 93 (Report of Medical History), dated 11 March 1982.

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 military personnel records contain an SF 93, dated 16 July 1980, that shows in response to Item 8 (Statement of Examinee’s Present Health and Medications Currently Used) the applicant entered, in pertinent part, “Good, medication - none, allergy - penicillin.”  On the reverse side of the form the applicant acknowledged having had a lymph node removed and low blood sugar.  Item 25 (Physician’s summary and elaboration of all pertinent data - Physician shall comment on all positive answers in Items 9 through 24.  Physician may develop by interview any additional medical history he deems important, and record any significant findings here.), in pertinent part, shows the medical doctor provided comment on the medical conditions noted by the applicant.  This document also shows both the applicant and physician placed their signatures on the document.

3.  The applicant’s military personnel records contain an SF 88, dated 21 July 1980.  Item 73 (Notes), in pertinent part, contains the statement “No disqualifying defects or communicable diseases were noted this date.”  This document also shows the physician found the applicant fit and qualified for enlistment in the Regular Army (RA).

4.  The applicant’s military personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years in the Delayed Entry Program on 16 July 1980.  He then enlisted in the RA and entered active duty for a period of 4 years on 23 September 1980.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle/Power Generator Mechanic).  He served overseas in the U.S. Army Europe in Germany from 17 April 1981 to 16 March 1982 and was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 2nd Air Defense Artillery with principal duty in MOS 63B.

5.  The applicant’s military personnel records contain an AE Form 113-4-R, dated
4 January 1982, that shows he was counseled by his noncommissioned officer in charge (NCOIC) for failing to repair for duty at the scheduled time on two occasions on 2 January 1982.  This document also shows the applicant had repeatedly been late for duties, was being recommended for disciplinary action and training at the Giessen Military Correctional Custody Facility (CCF).

6.  The applicant’s military personnel records contain a DA Form 2496, dated
6 January 1982, subject:  Return of UP, that shows the applicant was returned to his unit on 4 January 1982 after performing UP for the Giessen North Subcommunity.  This document also shows, in pertinent part, the administrative NCO documented that the applicant failed to repair on 4 January 1982, demonstrated no concern for his fellow workers or for promptness, and had been counseled on numerous occasions that met with negative results.  This document further shows the NCOIC of the UP Force recommended a week of training for the applicant at the CCF.

7.  The applicant's military personnel records contain a DA Form 2627, date indistinguishable, that shows nonjudicial punishment was imposed by the company commander against the applicant in that, on or about 0900 hours,
9 January 1982, without authority, he did fail to go at the time prescribed to his appointed place of duty, to wit:  Headquarters and Headquarters Battery formation, in violation of Article 86, UCMJ.  The applicant indicated he did not demand trial by court-martial; he did not request an open hearing in the Article
15 proceedings or a person to speak in his behalf; and indicated that matters in defense and/or extenuation would not be presented.  After consideration of all matters presented in defense and/or extenuation and mitigation, the company commander imposed the applicant’s punishment which consisted of reduction to the grade of private E-2; forfeiture of $100.00 per month for a period of 1 month; 7 days extra duty; and restriction to the limits of the battery billets, community chapel, dining facility, and appointed place of duty for a period of 7 days.

8.  The applicant’s military personnel records contain an AE Form 113-10-R, dated 8 February 1982, that shows the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the EDP based on his continual substandard performance of duties.  The reasons for his action were the applicant’s failure to report for duty at the proper time and place; lack of respect for and unwillingness to obey the orders of his superiors and rules of the military; poor attitude; failure to show any desire to improve despite numerous counseling sessions; and inability to adapt to military life.  The applicant was advised that the final decision as to whether he would be discharged and, if so, the type of discharge he would be issued rested with the discharge authority.  The applicant was also advised of his rights.

9.  On 10 February 1982, the applicant acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (EDP), and voluntarily consented to the discharge.  The applicant acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps and that he elected not to submit statements in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  He further acknowledged that he understood that he may, prior to the date the discharge authority approves his discharge, withdraw his voluntary consent to the discharge.  The applicant also acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge and he affixed his signature to the document.

10.  The applicant’s military personnel records contain an SF 93, dated 11 March 1982, prepared by the applicant for the purpose of his separation examination.  In item 8 the applicant entered, “I am in good health” followed by his signature. On the reverse side of the form the applicant acknowledged having had a lymph node that was behind his right ear removed at age 15 (or so).  Item 25 shows, in pertinent part, the medical doctor entered “allergic penicillin, subcutaneous cyst right face; passed renal stone 1979, no problem since; and painful feet in basic training.”  This document also shows both the applicant and physician placed their signatures on the document.

11.  The applicant’s military personnel records contain an SF 88, prepared for the purpose of the applicant’s separation from the Army.  Item 73 (Notes) and Item 77 (Summary of Defects and Diagnoses) are absent any entries.  This document also shows the physician found the applicant fit and qualified for separation.

12.  The applicant’s military personnel records contain a copy of Headquarters,
H2 Battery, 2nd Battalion, 2nd Air Defense Artillery (Germany), 1st Endorsement, undated, subject:  Recommendation for Elimination Under the Provisions of Paragraph 5-31, Army Regulation 635-200 [Applicant’s Name, Rank, and Social Security Number].  This document shows, in pertinent part, that the company commander recommended approval of the applicant’s discharge based on his substandard duty performance and forwarded the separation packet to the Commander, 2nd Battalion, 2nd Air Defense Artillery.

13.  On an unspecified date, the lieutenant colonel serving as the Special Court-Martial Convening Authority and the authorized separation authority in the applicant’s case, approved the recommendation for separation under the provisions of Army Regulation 635-200, Chapter 5, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 18 March 1982.

14.  The DD Form 214 issued to the applicant on the date of his separation confirms he was discharged under honorable conditions, under the provisions of Army Regulation 635-200, paragraph 5-31h(2), Expeditious Discharge Program for failure to maintain acceptable standards for retention.  At the time of his discharge the applicant had completed 1 year, 5 months, and 26 days of net active service during the period of service under review.  Item 21 (Signature of Member Being Separated) shows the applicant placed his signature on the document.

15.  The applicant’s military personnel records are absent evidence of any Medical Evaluation Board or Physical Evaluation Board proceedings.

16.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

17.  In support of his application, the applicant provides the following documents.

     a.  A 5-page, self-authored unsworn declaration, dated 6 November 2008; his DD Form 214 with an effective date of 18 March 1982; AE Form 113-4-R, dated 4 January 1982; DA Form 2496, dated 6 January 1982, subject:  Return of UP; AE Form 113-10-R, dated 10 February 1982 with Headquarters, H2 Battery,
2nd Battalion, 2nd Air Defense Artillery (Germany), 1st Endorsement, undated, subject:  Recommendation for Elimination Under the Provisions of Paragraph
5-31, Army Regulation 635-200 [Applicant’s Name, Rank, and Social Security Number]; DA Form 2627, date indistinguishable; and SF 93, dated 11 March 1982.  All of these documents were previously introduced and considered in this Record of Proceedings.

     b.  Five SFs 600 covering the period 6 February 1981 to 19 January 1982 and an SF 513, dated 16 March 1981.  These documents, in pertinent part, show the applicant complained of mild ankle stress and that his feet hurt for approximately
6 months.  These documents also show that he received treatment for an ankle sprain and right medial plantar aspect of his 1st MPJ [first medial plantar joint]. The last medical entry relating to the applicant’s foot problems appears on
17 July 1981 and, in pertinent part, shows that the applicant’s “right foot appears normal” and “probable muscle strain.”

     c.  The AEM Form 318-R, dated 6 July 1981 (emphasis added), shows that in response to Item 1 (Are you seeing a medical doctor for anything?) both “Yes” and “No” are circled and handwritten above them is the entry “Both feet pain
3 Feb 82” (emphasis added).  This document also contains the statement, “I CERTIFY THE ABOVE INFORMAITON IS ACCURATE TO THE BEST OF MY KNOWLEDGE” and in response to “Today’s Date” the applicant entered “6 July 81.”  In addition, this document shows that John E. B____, Dental Corps, signed the form and entered the date “6 July 81.”

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit 
because of physical disability to reasonably perform the duties of his or her 
office, grade, rank, or rating.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-1 (Standards of unfitness because of physical disability), of this Army regulation, in pertinent part, provides that the mere presence of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

19.  Army Regulation 635-200, in effect at the time of the applicant's separation processing, set forth the basic authority for separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-31, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or under honorable conditions, as appropriate.

20.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was honorably retired based upon permanent disability with a disability rating of 100 percent based on mental disability rated at 85 percent and physical disability rated at 15 percent.

2.  There is no evidence that the applicant was referred to a medical evaluation board or a physical evaluation board.  There is also no evidence of record of any documented mental disorder or unfitting medical condition(s).  In addition, there is no evidence of record that shows the applicant was found unfit for retention in military service during the period of service under review.  

3.  The evidence of record shows that the physician conducting the applicant's separation medical examination found the applicant fit and qualified for separation.  In addition, the evidence of record shows that at the time of the applicant’s separation medical examination, the applicant acknowledged with his signature that he was in good health.  Thus, in view of the foregoing, there is insufficient evidence to support the applicant’s claim for permanent disability retirement with a disability rating of 100 percent.

4.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

5.  The applicant’s record of service shows completion of only 1 year, 5 months, and 18 days of his 4-year enlistment commitment and also documents his failure to report for duty at the proper time and place; lack of respect for, and unwillingness to obey the orders of his superiors and rules of the military; poor attitude; failure to show any desire to improve despite numerous counseling sessions; and inability to adapt to military life.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and therefore, he is not entitled to an honorable discharge.

6.  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.  Therefore, there is no justification for granting the applicant's request.

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)                                         AR20080019137



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ABCMR Record of Proceedings (cont)                                         AR20080019137



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