IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090012071 


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, change of his uncharacterized discharge to an honorable or a medical discharge.

2.  The applicant states, in effect, that he was medically discharged from the service and his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service as uncharacterized.  He contends that his medical conditions consisted of seizures and a heart condition and that he was later diagnosed with a mental disorder.  He claims that the Department of Veterans Affairs (VA) had authorized services for the past 3 1/ 2 years but has now rejected all further care due to an uncharacterized discharge.

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army (RA) on 14 November 1989 for a period of 3 years and 15 weeks.  He successfully completed one-station unit training in military occupational specialty (MOS) 13B (cannon crewmember).

3.  On 27 March 1990, the applicant underwent a psychological evaluation by a psychologist and he was diagnosed with schizotypal personality disorder (with dependent features).  The applicant met the medical fitness standards for retention prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and there was no mental disease or defect which warranted disposition through medical channels.  The applicant was cleared for any administrative action deemed appropriate by his command.  The psychologist strongly recommended that the applicant be expeditiously considered for administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5-13 (Separation because of personality disorder).

4.  On 3 April 1990, the applicant signed a Medical Examination for Separation Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a medical officer at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for and complete an examination based on the results of the review.  Medical examinations are intended to identify conditions which may require attention.  They are not accomplished to determine eligibility for physical disability processing although such could occur as a result of examination findings.  I do not desire a separation medical examination."  His medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.

5.  Discharge under the provisions of Army Regulation 635-200, paragraph 5-13, for personality disorder was initiated on 6 April 1990.  On 6 April 1990, the applicant waived the opportunity to consult with counsel.

6.  On 25 April 1990, the separation authority withdrew the recommendation for separation under the provisions of Army Regulation 635-200, chapter 5-13 and changed it to chapter 11 (Entry Level Performance and Conduct) under the same Army regulation.  He directed that the applicant be furnished an uncharacterized discharge.

7.  On 26 April 1990, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a, by reason of entry level status performance and conduct.  His character of service was uncharacterized.  He had completed 5 months and 13 days of creditable active service.

8.  Item 24 (Character of Service) on the applicant's DD Form 214 shows the entry "UNCHARACTERIZED."

9.  There are no service medical records in the available records.

10.  There is no evidence of record which shows the applicant was diagnosed with seizures or a heart condition prior to his release from active duty.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct (or both) while in an entry level status.  This provision of regulation applied to individuals who had demonstrated inability, lack of reasonable effort, or failure to adapt to the military environment.  The regulation states that a Soldier is in an entry level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.  The Soldier’s service is uncharacterized when separated under this chapter.

12.  Army Regulation 635-200, paragraph 5-13, provides that a Soldier may be separated for personality disorder, not amounting to a disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty.  The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.

13.  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.  Under the laws governing the Army Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

14.   Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that he was medically discharged from the service.  Evidence of record shows he was in an entry level status when he was discharged on 26 April 1990 and his character of service was uncharacterized, which is properly reflected in item 24 on his DD Form 214.

2.  Although the applicant contends that his medical conditions consisted of seizures and a heart condition, there is no evidence of record which shows he was diagnosed with these conditions prior to his release from active duty.  He declined a medical separation examination on 3 April 1990.

3.  The governing regulation states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  Therefore, there is no basis for granting the applicant's request for an honorable discharge.

4.  It is noted that the applicant was diagnosed with a personality disorder by a psychologist prior to his release from active duty.  However, medical evidence of record shows he was psychiatrically cleared for any administrative action deemed appropriate by his command prior to his discharge.  There is no evidence of record to show he was ever medically unfit to perform his duties.  There is also no evidence and the applicant did not provide any evidence that shows he was or should have been processed through the Physical Disability Evaluation System during his tenure of service.  As such, there is no basis for granting the applicant's request for a medical discharge.


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)                                         AR20090012071



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ABCMR Record of Proceedings (cont)                                         AR20090012071



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