IN THE CASE OF:	  

		BOARD DATE:	       20 AUGUST 2009

		DOCKET NUMBER:  AR20090004329 


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, that the reason for his discharge be changed to medical or that he be granted a waiver of time in service for the purposes of receiving medical services from the Department of Veterans Affairs (VA).

2.  The applicant states that he suffered a mental event while on active duty.  He was evaluated and quickly discharged.  His mental condition at the time did not allow him to seek proper treatment.  He contends that he has a service-connected disability that is being denied because of his short period of active duty service.

3.  The applicant provides an unsigned statement that he cannot get a copy of his personnel records because he is incarcerated.

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.  On 1 May 1981, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 8 September 1981, the applicant departed Fort Dix, New Jersey, for assignment in Europe.  He was subsequently assigned for duty as a motor transport operator with the 503rd Supply and Transport Battalion in the Federal Republic of Germany.

4.  On 16 September 1981, the applicant underwent a psychiatric evaluation.  He was experiencing considerable tension related to his inability to escape the intensity of interpersonal relationships.  He had similar problems prior to entry on active duty.  The applicant showed severe internal stress and hypnogogic hallucinations.  Psychological testing supported a concern that he could develop a psychotic illness if the stress continued.  He was oriented with no disorganization of thought, and his memory was intact.  The psychiatrist recommended discharge as soon as possible.

5.  On 28 September 1981, the applicant’s immediate commander initiated separation action under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)) of Army Regulation 635-200 (Personnel Separations) because of his inability to adapt socially and emotionally to the United States Army.

6.  The applicant acknowledged notification of his proposed discharge from the Army.  The applicant voluntarily consented to this separation and declined to make a statement.  He further acknowledged that he understood that if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life and that he had been afforded the opportunity to consult with an officer of the Judge Advocate General's Corps.  There is no available evidence showing that he consulted with legal counsel.

7.  On 30 September 1981, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 21 October 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 5 months and 21 days of creditable active military service.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry, "failure to maintain acceptable standards for retention (EDP)."

8.  There is no available evidence of record showing that the applicant had applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

10.  Army Regulation 635-40 further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides in Title 10, U.S. Code, section 1201, for the physical disability retirement of a member who has an impairment rated at least 
30-percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have received a medical discharge.  Barring that, he requests a waiver of service time in order to qualify for medical treatment based on service connection.
2.  The evidence of record shows the applicant voluntarily consented to discharge under the EDP.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  The available evidence shows that the applicant's mental problems while on active duty were similar to problems he had prior to entry on active duty.  There is no available evidence showing that he had developed any new or different conditions that would have warranted a medical discharge.

4.  Since the applicant's medical condition was not medically unfitting for retention at the time, there was no basis for medical retirement or separation.  He was separated from active duty for reasons other than physical disability.

5.  There are no provisions for the Army to waive an individual's length of service for the purpose of providing medical treatment by the VA.  Eligibility for VA benefits is completely under the purview of that department and is not a basis for a Board decision.

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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis 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.



      ___________XXX______________
                 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)                                         AR20090004329



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ABCMR Record of Proceedings (cont)                                         AR20090004329



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