IN THE CASE OF:
BOARD DATE: 29 October 2009
DOCKET NUMBER: AR20090008052
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a narrative reason for separation of "medical" instead of "failure of selection for permanent promotion."
2. The applicant states he is a disabled person and his DD Form 214 has a discriminating narrative. He states that his bipolar disorder was the undiagnosed real reason for his non-selection.
3. The applicant provides a letter from his spouse to Dr. R____ (Department of Veterans Affairs (VA) Psychiatrist) and a statement from Dr. R____ in support of this 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's military records show that he enlisted in the U.S. Army Reserve 16 March 1962 and served until he was discharged to accept a commission as a second lieutenant on 30 July 1965. He entered active duty on 1 October 1965 and was promoted to captain.
3. A U.S. Army Military Personnel Center letter, dated 31 July 1979, contained in the applicant's records indicates he was to be personally advised that he was not recommended for permanent promotion to major. This was his second Regular Army non-recommendation for promotion to the next higher grade. He was informed that Title 10, U.S. Code, section 3303, required his discharge not later than the first day of the seventh month after the Secretary of the Army approved the promotion board's report.
4. On 14 August 1979, the applicant acknowledged receipt of his pending discharge which was to occur not later than 1 February 1980 as a result of a second Regular Army non-recommendation for promotion.
5. The applicant's officer evaluation report for the rating period 15 June 1979 through 31 October 1979 shows he "continued his superb job as administrator" and the report for 1 November 1979 through 31 January 1980 shows he met requirements.
6. On 1 February 1980, the applicant was discharged under the provisions of chapter 11 of Army Regulation 635-120 (Officer Resignations and Discharges) for failure of selection for permanent promotion.
7. 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:
1. The applicant's contention that his undiagnosed bipolar disorder was the real reason for his non-selection for promotion and that he should have been discharged for medical reasons was considered in these proceedings. However, notwithstanding the letter from his spouse to the VA psychiatrist and the VA psychiatrist's letter, there is no available corroborating evidence in support of this contention.
2. The applicant's records show he was twice not selected for promotion to major. The Board starts its consideration with a presumption of regularity, that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. Therefore, it is presumed that his command properly separated him for failure of selection for permanent promotion.
3. The applicant's most last two officer evaluation reports indicated that he generally performed his duties in a superior or outstanding manner and was considered to have the potential to be an outstanding officer. There was no evidence to show he could not perform his duties. As a result, there is no evidentiary basis upon which to support the applicant's request to change his narrative reason for separation from "failure of selection for permanent promotion" to "medical."
4. 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.
____________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) AR20090008052
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