IN THE CASE OF:	  

		BOARD DATE:	       23 JULY 2009

		DOCKET NUMBER:  AR20090004887 


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 his records be corrected to show he was discharged by reason of a physical disability that was incurred as a result of military service. 

2.  The applicant states, in effect, that his discharge incorrectly reflects he was discharged due to marginal or nonproductive performance when in fact, he was discharged for medical reasons (depression) that were caused by his military service.  As a result of his records indicating he received an administrative discharge instead of a medical discharge for major depression, he is being denied veterans benefits. 

3.  The applicant provides a one-page letter explaining his application, a copy of his Department of Veterans Affairs (VA) Rating Decision, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), two third party letters of support, a copy of his appeal to the VA, a copy of a psychiatric evaluation, and a copy of a history and physical sheet documenting his medical history at 
19 months.

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 was born on 13 January 1957 and enlisted in the Regular Army in Little Rock, Arkansas, on 6 November 1980, for a period of 4 years and training as an eye specialist.  He was transferred to the Reception Station at Fort Jackson, South Carolina and was subsequently assigned to a company at Fort Jackson to undergo basic training.

3.  On 14 November 1980, the applicant requested that he be allowed to leave the Army.  He indicated that he almost went absent without leave (AWOL) on 13 November 1980 because he could not stand the pressure or the physical part of training, and that he simply did not want to be in the Army.  His drill sergeant counseled him and recommended that he be referred to mental hygiene and discharged from the service.

4.  The applicant’s drill sergeant counseled him again, on 15, 17, 18 and
22 November 1980.  On 19 November 1980, the applicant was counseled by his commander concerning his ability to participate and complete basic training.  The commander indicated the applicant was overweight, that he could not do any exercise and that he fell out of runs after 200 meters.  He indicated that the applicant seemed to be intelligent but showed no potential production.  His attitude was one of "I can't" and he had no motivation to be a productive Soldier.  He seemed to be nervous and upset most of the time and unable to adjust to the demands of the military.

5.  Meanwhile, on 21 November 1980, the applicant underwent a psychiatric evaluation and was psychiatrically cleared for any administrative or judicial action deemed appropriate by the command.  The psychiatric officials indicated that the applicant exhibited characteristics of an avoidant personality disorder manifested by oversensitivity, social withdrawal, and low self-esteem.  The recommendation was that he be considered for an administrative separation.  

6.  On 22 November 1980, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 5-33 due to his inability to adapt to military life.  The applicant elected not to make a statement in his own behalf and declined a separation medical examination.

7.  The applicant's battalion commander indicated the applicant was an extremely nervous individual who could not take the pressure of basic training, he had performed in a substandard manner, was overweight and could not meet the minimum standards of physical training.  The applicant had indicated that he would go AWOL to leave basic training.  The battalion commander recommended that the applicant be discharged.

8.  The appropriate authority approved the recommendation for discharge and directed that he be furnished an Honorable Discharge Certificate.

9.  Accordingly, the applicant was honorably discharged, on 4 December 1980, under the provisions of Army Regulation 635-200, paragraph 5-33f(2) and the Trainee Discharge Program (TDP) due to marginal or non-productive performance.  He had served 29 days of total active service.

10.  Army Regulation 635-200, paragraph 5-33, in effect at the time, provided the criteria for the separation of personnel under the Trainee Discharge Program (TDP) who lacked the necessary motivation, discipline, ability, or aptitude to become a productive Soldier.  It states, in pertinent part, that commanders may expeditiously discharge members of the Regular Army, Army National Guard or United States Army Reserve who have completed 179 days or less of active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Commanders were authorized to issue either an Honorable or General Discharge and the separation code for discharge under the TDP was "JET."  The appropriate RE Code to be assigned to individuals discharged with a separation code of "JET" is a "3."  Under today's standards, individuals discharged with less than 180 days of active duty service will receive a discharge with "UNCHARACTERIZED" service.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating.

12.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own 


policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  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.  Accordingly, the type of discharge directed and the reasons therefore were appropriate given the circumstances in the case.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant was deemed fit for separation or he would not have been discharged until such time as his medical condition was resolved.  The applicant has failed to show through the evidence submitted with his case or the evidence of record that such was not the case.

3.  The applicant expressed his desire to leave the Army within 1 week of his arrival at Fort Jackson, which is indicative that his alleged nervous condition existed prior to entry into the service coupled with the fact that there is no evidence to suggest that he should have been processed for separation through medical channels.  Accordingly, there is no basis to grant his 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.



      _______ _   _XX______   ___
               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)                                         AR20090004887



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ABCMR Record of Proceedings (cont)                                         AR20090004887



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