IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008029 


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 that his discharge be changed to a medical retirement.

2.  The applicant states that even though it was not a requirement, his unit commander should have used medical channels for his discharge.  He quotes Army Regulation 635-200 (Personnel Separations), paragraph 13-5, and opines that he had incapacitating physical and mental illness problems that were the direct or contributing cause of his conduct for which he was separated.  He offers that he was viciously and brutally attacked and attempted suicide twice in February and March 1986, along with other self-destructive behavior.  

3.  The applicant provides his self-authored statement and a psychiatric assessment.  

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.  In the applicant's self-authored statement, he said that he provided numerous documents in support of his application.  However, the only document that was received with his application was a psychiatric assessment.

3.  The psychiatric assessment shows that the applicant underwent an examination on 2 May 2008.  The assessment provided a brief history of the applicant's illness, medical history, social history, behavioral observations, findings, impression, and recommendations/discussion.  The clinical psychologist said that his evaluation would not cover the applicant's post-traumatic stress disorder (PTSD), since his PTSD was being treated and evaluated weekly by someone else.  He offered that the applicant's present cognitive complaints included difficulty reading and depression with a history of suicidal thoughts, but with no present intent or plan.  Additionally, the applicant reported that his sleep was disturbed, a bilateral tingling pain, and feelings that his space was being invaded.

4.  The psychologist said that the applicant had a long history of using cannabis since the beginning of 1974.  He added that the applicant continued to use cannabis at least three or four times a day.  However, the applicant reported a rare use of alcohol.  The psychologist stated that the applicant had a fairly lengthy psychiatric history with his first treatment around 1987.  The psychologist concluded that there was evidence of current psychiatric distress, including a component of obsessive behavior regarding his perceived cognitive and somatic difficulties.

5.  The applicant’s record shows he enlisted in the Regular Army on 29 May 1973 and was honorably discharged on 21 April 1975.  He reentered the Regular Army on 24 June 1981.

6.  On 5 February 1986, nonjudicial punishment was imposed against the applicant for wrongful use of marijuana.

7.  On 17 April 1986, the report of mental status evaluation shows that the applicant was psychiatrically cleared to participate in any administrative action deemed appropriate by the command.  

8.  On 20 March 1986, the applicant was screened for depression associated with difficulty making an adjustment to Army life.  The Chief, Social Work Service, stated that the applicant reported depression manifested in decreased appetite, difficulty sleeping, and an inability to concentrate.  Additionally, he reported crying often, low self esteem, confused thinking and suicidal ideation.  The Social Work Service Chief said that a mental status evaluation was conducted and the Soldier presented passive behavior, was fully alert, fully oriented, with depressed mood, clear thinking process, and normal thought content.  He opined that the applicant had the mental capacity to understand and participate in chapter 13 separation proceedings.

9.  A memorandum, dated 9 June 1986, shows that the applicant’s commander initiated action to discharge him under the provisions of Army Regulation 
635-200, chapter 13, for unsatisfactory performance.

10.  On 9 June 1986, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He elected to submit a statement on his behalf.

11.  In the applicant's statement, he discussed the issues he had with his wife who was also a service member.  He said that he had served honorably for so long and sought help for his problems, even though he was unsuccessful.  The applicant requested that he be awarded an honorable discharge.

12.  On 16 June 1986, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He directed that a General Discharge Certificate be issued.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated with an Under Honorable Conditions Discharge Certificate on 24 June 1986 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The applicant had completed a total of 7 years, 6 months, and 9 days of active service.

14.  On 9 April 1988, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  Although a copy of the applicant's medical examination was not contained in his records, in the ADRB's summary the board stated that his medical examination dated 14 April 1986 cleared him for separation.  On 29 December 1988, the ADRB denied the applicant’s request for a discharge upgrade.  The ADRB determined that the applicant was properly discharged.

15.  Army Regulation 635-200 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 when it was determined that he or she was unqualified for further military service because of unsatisfactory performance.  The regulation required that separation action would be taken when in the commander’s judgment the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  The service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

16.  Additionally, Army Regulation 635-200, paragraph 13-5, states, in pertinent part, when separation for unsatisfactory performance is appropriate, the unit commander will ensure that a medical examination and mental status evaluation is obtained.  When appropriate, forward the case recommending that the Soldier be processed through medical channels.  This is required when Uniform Code of Military Justice action is not initiated and when the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct for which separation action is being considered.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provided that the medical treatment facility (MTF) commander with the primary care responsibility would evaluate those referred to him and would, if it appeared as though the member was not medically qualified to perform duty or failed to meet retention criteria, refer the member to a medical evaluation board.  Those members who did not meet medical retention standards would be referred to a physical evaluation board for a determination of whether they were able to perform the duties of their grade and military specialty with the medically disqualifying condition.

18.  Paragraph 4-8 of Army Regulation 635-40 states that when a commander believes that a Soldier of his or her command is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been medically retired because he had incapacitating physical and mental illness problems that ultimately caused his separation is without foundation.  The applicant’s separation mental evaluation, conducted by competent medical authority, shows that there was no psychiatric disease or defect which warranted his disposition through medical channels.  The evaluation determined that the applicant was then medically fit for separation.

2.  The chapter 13 proceedings verified that the applicant was afforded due process.  He waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.

3.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment received in service.  Absent evidence to the contrary, the applicant was physically fit at the time of his discharge on 24 June 1986.  He has provided no evidence to indicate otherwise.  Consequently, there is no basis for granting the applicant's request to correct his records to show that he was medically retired.

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)                                         AR20090008029



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ABCMR Record of Proceedings (cont)                                         AR20090008029



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