BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090017364 


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 his honorable discharge be changed to a medical discharge.

2.  The applicant states he was awaiting the results of a physical disability processing action for his delusional disorder when he was discharged.

3.  The applicant provides a letter from the U.S. Army Reserve Personnel Center and his Honorable Discharge Certificate 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 on 25 February 1976 and continued to serve on active duty through reenlistments.

3.  The applicant's personnel service record contains an Optional Form 275 (Medical Record Report), dated 5 July 1989, which revealed his diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct.  No other medical documentation is available in his service record.

4.  On 27 July 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 10 July 1989 to 12 July 1989.

5.  On 19 September 1989, the applicant was charged with two specifications of AWOL from 24 July 1989 to 26 July 1989 and from 31 July 1989 to 15 September 1989 and wrongfully possessing less than one gram of marijuana.

6.  On 21 September 1989, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if an under other than honorable conditions (UOTHC) discharge was issued.  He did not submit statements in his own behalf.

7.  On 12 October 1989, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with the issuance of a UOTHC discharge.

8.  The applicant was discharged on 25 October 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.

9.  On 23 August 1991, the Army Discharge Review Board (ADRB) upgraded the applicant's UOTHC discharge to fully honorable.  In a separate vote, the majority voted to restore the applicant's grade of E-7.  In Part VI (Issues and Findings) of the Case Report and Directive, the ADRB indicated the following points regarding the applicant's mental condition:

* hospitalized at Darnall Army Community Hospital at Fort Hood from 1 February 1989 to 4 July 1989 with a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct
* received a medical examination for a medical evaluation board while in hospital
* transferred to Brooke Army Medical Center, Fort Sam Houston, TX, on 4 July 1989
* taken to Austin State Hospital on 4 July 1989 for reportedly threatening to kill his girlfriend
* admitted to Austin State Hospital and diagnosed as having a delusional disorder, paranoid type by history, alcohol dependence, continuous history, and organic mental disorder ruled out
* released back to Darnall Army Community Hospital on 5 July 1989

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

11.  Army Regulation 635-40, paragraph 4-3 states that an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was awaiting the results of a physical disability processing action for his delusional disorder while he was discharge is acknowledged.

2.  The ADRB decisional document shows the applicant received a medical examination for a medical evaluation board in July 1989.

3.  Based on the governing regulation, an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.  At the time in question, the type of discharge (UOTHC) the applicant was subject to rendered him ineligible for referral to the Physical Disability Evaluation System.

4.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, 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)                                         AR20090017364



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017364



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1