IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090009078 


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, his honorable discharge to changed to reflect a medical retirement or discharge.

2.  The applicant states that at the time of his discharge he suffered from a mental illness (bipolar disorder) which he feels was aggravated by military training.

3.  The applicant provides no additional evidence or official documentation in support of his 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 personnel records show he enlisted in the Regular Army on 30 December 1976 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 05F (Radio Teletypewriter).  On 22 June 1977, he was assigned to Company B, 125th Signal Battalion, in Hawaii.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 12 February 1977 and 24 August 1977.  His offenses included failure to obey a lawful command from a commissioned officer, failure to go at the time prescribed to his appointed place of duty, and being absent without leave from on or about 20 July 1977 until on or about 27 July 1977.

4.  On 23 September 1977, the applicant's commander notified him that he was initiating action to discharge him from the Army under the provisions of the Expeditious Discharge Program and that he recommended the applicant receive an honorable discharge.

5.  The applicant's commander stated the applicant was unable to cope with military life and military authority.  He also stated the applicant had established a reputation for dishonesty by cashing worthless checks and by malingering.  The applicant had been personally counseled on five occasions for these incidents and he had received NJP on two occasions.

6.  The commander advised the applicant he had the right to decline this discharge.  However, if he declined and his subsequent conduct indicated such action was warranted, he might be subject to disciplinary or administrative separation procedures under other provisions of law or regulations.  The applicant had a right to submit a statement in his own behalf.

7.  On 23 September 1977, the applicant acknowledged notification of his proposed discharge, voluntarily consented to be discharged, and waived his right to submit a statement.  He acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps and that he did obtain legal counsel.

8.  On 23 September 1977, the applicant's commander recommended the applicant be discharged under the Expeditious Discharge Program and that he be given an Honorable Discharge Certificate.

9.  On 6 October 1977, the appropriate authority approved the applicant's expeditious discharge and directed that he be furnished an Honorable Discharge Certificate.
10.  On 1 November 1977, the applicant was discharged under the provisions of paragraph 5-37 of Army Regulation 635-200 (Personnel Separations).  He had completed 9 months and 25 days of active service that was characterized as honorable.

11.  There is no evidence in the applicant's military personnel records of the applicant having been diagnosed with any mental or physical condition by which he was determined not to be medically qualified to perform duty or failed to meet medical retention criteria.

12.  The applicant's service medical records were not available for review.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

14.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of this regulation provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have received a medical discharge because he suffered from a mental illness that he felt was aggravated by military training.

2.  There is no evidence the applicant was not medically qualified to perform his duties or that he failed to meet medical retention criteria.  There is no evidence the applicant was referred to an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

3.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The applicant’s commander notified him of the reasons and the type of discharge the commander was recommending.  The applicant voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  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 that requirement.

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)                                         AR20090009078



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ABCMR Record of Proceedings (cont)                                         AR20090009078



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