BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013748 


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 an upgrade of her uncharacterized discharge to a medical discharge.

2.  The applicant states that she was 17 years of age when she enlisted.  She had previously lived at the Iowa Juvenile Home and was told to go into the service or be placed in another location until they could find a place for her to live.  She did not want to be institutionalized, so she joined the Army.  She adds that as a child, she was physically, emotionally, and sexually abused.  However, she did not share her abusive past with her recruiter.  She also had an injury to her shoulder in high school which caused her difficulties in placing her arms behind her back during training.  Her recruiter told her not to list this injury on her entrance examination because she would not have been able to enter the Army.  When she entered the Army, due to her history of abuse, she had difficulties adjusting to the demands of military training.  The training aggravated her symptoms of depression, anxiety, and high blood pressure.  She even attempted suicide during her military service.  However, instead of being referred to therapy, she was given nonjudicial punishment (NJP).  She was within 2 weeks of graduation when she was discharged.  An official at the Department of Veterans Affairs explained to her what "Line of Duty" means and she now disagrees with the finding that her suicide attempt was not in line of duty and that it was due to her misconduct, because she continued to exhibit problems associated with her depression and anxiety disorder.  She concludes that she was recalled to active duty during Operation Desert Storm but her psychiatrist wrote her a letter to get her out of the service.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 6 September 1985; copies of her DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 29 August 1985 and 5 July 1985; a copy of her discharge orders, dated 6 September 1985; a copy of a DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status), dated 24 August 1985; and a VA Form 21-4138 (Statement in Support of Claim), dated 4 August 2009, in support of her request.

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 records show she was born on 19 February 1968 and voluntarily enlisted in the Regular Army at the age of 17 years and 3 months for a period of 3 years on 20 May 1985.  She was subsequently assigned to Fort Dix, NJ, for completion of basic combat training (BCT) and advanced individual training (AIT) under the one station unit training program.

3.  On 14 June 1985, the applicant was referred to the Community Mental Health Service, Walson Army Community Hospital (WACH), Fort Dix, NJ, to rule out a psychosomatic disorder as she had previously hyperventilated on two occasions and reported that she was frightened after being scolded by her cadre.  She did not know why she hyperventilated and indicated that she did not consider that to be a problem.  She reported that she had previously seen nine different counselors for various reasons and was previously prescribed medications for hyperactivity.  She also revealed that she had an extensive history of drug abuse and self damaging acts and reported that she had tried to quit drugs but was unable to do so. 

4.  On 17 June 1985, 4 weeks into BCT, the applicant took an overdose of 20 assorted pills at the barracks while on duty as a suicidal gesture.  She complained of an inability to adapt to military life and wanted to be separated from the service.  She was admitted to WACH for treatment.  
5.  On 5 July 1985, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for avoiding her duties as an enlisted person in that she consumed 20 or more Tylenol, Motrin, and Triaminicin pills, on or about 17 June 1985.  Her punishment consisted of a forfeiture of $133.00 pay, 14 days of restriction, and 14 days of extra duty.

6.  On 14 August 1985, a line of duty investigating officer (IO) was appointed to investigate the injury.  The IO reviewed the facts and circumstances of the incident and determined that the applicant was mentally sound at the time of her act and that her intentional misconduct or neglect was the proximate cause of the drug overdose.  The IO reported a finding of "Not in line of duty-Due to own misconduct."  Additionally, after a review for legal sufficiency by a Judge Advocate attorney, the appointing/reviewing authority ultimately approved the finding of "Not in Line of Duty-Due to Own Misconduct" on behalf of the Secretary of the Army.

7.  The applicant's records contain multiple counseling statements by several members of her chain of command for various reasons as follows:

	a.  On 23 August 1985, due to her temporary physical profile, the applicant had missed classes and was reassigned from one AIT class to another.  She notified her drill sergeant that she wanted be discharged under the Trainee Discharge Program. 

	b.  On 26 August 1985, for disobeying a lawful order to change into duty uniform and go to class.

	c.  On 27 August 1985, for displaying a negative attitude, lack of motivation, and lack of discipline; refusing to train; and failing to correct her shortcomings and continuous desire to be put out of the Army; and

	d.  On 28 August 1985, for refusing to attend the Food Service Course, displaying a poor attitude towards her fellow Soldiers, lack of self discipline and motivation, and failure to attempt to become a productive Soldier. 

8.  On 29 August 1985, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to her appointed place of duty (bed check) on or about 24 August 1985.  Her punishment consisted of a forfeiture of $133.00 pay, 14 days of restriction, and 14 days of extra duty.


9.  The applicant’s immediate commander notified the applicant of his intent to initiate separation action against her under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) by reason of lack of desire, motivation, self-discipline, and maturity to become a productive member of the Army.  The immediate commander further notified her that if her separation was approved, she would receive an entry level separation with uncharacterized service. 

10.  On 28 August 1985, the applicant acknowledged receipt of the separation notification in accordance with chapter 11 of Army Regulation 635-200.  She acknowledged that she understood if the request for discharge was approved, she would receive an entry level separation with uncharacterized service.  She further declined to consult with counsel and elected not to submit a written statement on her own behalf.

11.  On 28 August 1985, the applicant’s medical records were reviewed at WACH, Fort Dix, NJ.  The attending physician remarked that a review of the applicant’s medical records indicated that a separation medical examination was not required.

12.  On 3 September 1985, the immediate commander initiated separation action against her in accordance with chapter 11 of Army Regulation 635-200 for lack of motivation and inability to cope with a military lifestyle.  The immediate commander indicated that the applicant had been rehabilitatively recycled and that she had created serious disciplinary problems or a hazard to the military mission.

13.  On 4 September 1985, the separation authority waived the rehabilitation requirements and approved the applicant's discharge from the Army under the provisions of chapter 11, Army Regulation 635-200.  Accordingly, the applicant was discharged on 6 September 1985.  The DD Form 214 she was issued confirms she was discharged due to entry level status performance and conduct in accordance with chapter 11 of Army Regulation 635-200 with an uncharacterized character of service.  She completed 3 months and 17 days of creditable active military service.

14.  The applicant’s available medical records show she was seen at WACH, Fort Dix, NJ, for several routine and/or urgent care illnesses to include an ovarian cyst, stomach cramps, pain in her thigh, sore throat, vaginal discharge, and difficulty breathing.  However, there is no indication that she was issued a permanent physical profile or that she was diagnosed as having any impairment that would have warranted her entry into the Personnel Disability Evaluation System (PDES).  Additionally, there is no indication that she underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB).

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry level status.  It states in pertinent part that when separation of a member in entry level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons: Cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

17.  Chapter 3 of this regulation describes the different types of characterization of service.  It provides in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

19.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

20.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention, and separation including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities.  Army Regulation 635-40, appendix B, modifies those provisions of the ratings schedule inapplicable to the military and clarifies rating guidance for specific conditions.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the characterization of service on her DD Form 214 should be changed from "uncharacterized" to "medical." 

2.  With respect to the applicant's age, the evidence of record shows the applicant was 17 years and 3 months of age at the time she enlisted; however, there is no evidence that indicates she was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  

3.  The evidence of record indicates that shortly after the applicant's entry on active duty, the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by her chain of command regarding her responsibility to meet Army standards.  She intentionally committed a suicidal gesture to escape her obligation as a member of the Army as evidenced by the IO's finding.  She lacked motivation and was unable to cope with the military lifestyle.  Accordingly, her immediate commander initiated separation action against her.  Absent her unsatisfactory performance, there was no fundamental reason to process her for discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
4.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and it is approved by the Secretary of the Army.  

5.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.  

6.  With respect to the medical discharge, the evidence of record shows that, 
4 weeks into BCT, the applicant took an overdose of 20 assorted pills as a suicidal gesture.  An IO subsequently conducted an investigation into her actions. After reviewing the facts and circumstances of the incident, the IO determined that the applicant’s intentional misconduct or neglect was the proximate cause of her injury.  Thus her injury was not in line of duty and was due to her own misconduct.  Additionally, after a review for legal sufficiency by a Judge Advocate attorney, the appointing authority ultimately approved a finding of "Not in Line of Duty-Due to Own Misconduct" on behalf of the Secretary of the Army.  The applicant’s dissatisfaction and/or disagreement with this determination does not invalidate it or entitle her to a medical discharge.

7.  The evidence of record also shows the applicant was medically evaluated for various illnesses, but was never found medically incapable of performing her military duties and training, or that she was issued a permanent physical profile that would have warranted referral to the PDES.  Therefore, she was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring her to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated for physical disability.

8.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with the Soldier's rank, grade or specialty and assigned an appropriate disability rating before the Soldier can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  In this case the applicant failed to produce a single piece of evidence to substantiate 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)                                         AR20090013748



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ABCMR Record of Proceedings (cont)                                         AR20090013748



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