IN THE CASE OF:	  

		BOARD DATE:	  	  22 June 2010

		DOCKET NUMBER:  AR20090019698 


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 reconsideration of an earlier request to upgrade his general discharge to a fully honorable discharge.  He also requests that the narrative reason for separation be corrected to show he was separated due to medical reasons. 

2.  The applicant states his narrative reason for discharge indicates he was discharged for "unsuitability-due to apathy, defective attitudes or inability to expend efforts constructively."  He was hospitalized for "mental problems" when he was in the military.  He now knows he was suffering from depression and anxiety at the time he served.  He currently receives treatment for anxiety and depression and he has symptoms very similar to those reasons given for discharge.  At the time of his discharge he was unable to stand up for himself and plead his case for an honorable discharge.  He concludes by stating he believes his narrative reason for separation should be changed to show he was discharged due to medical reasons based on his mental illness.  

3.  The applicant provides the following documents in support of his application:

	a.  a copy of Army Board for Correction of Military Records (ABCMR) Army Docket Number AR20090004341, dated 18 August 2009;

	b.  a letter from the Fort Polk, LA Assistant Inspector General, dated 22 June 1981;


	c.  Standard Form 93 (Report of Medical History), dated 5 August 1992; and

	d.  Department of Veterans Affairs VA Form 00-3101-3 (Request for Information), dated 25 July 1983.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090004341, on 18 August 2009.  

2.  The applicant's argument that he should have been medically separated and the new documents he provided are sufficient evidence to support reconsideration.

3.  The applicant enlisted in the Regular Army on 27 November 1979 for a 3-year period.  Upon completion of his initial military training, he was awarded military occupational specialty (MOS) 19E (Armor Crewman).  The highest rank/grade he attained was specialist four (SP4)/E-4.  

4.  On 21 December 1981, he was discharged for immediate reenlistment.  On 22 December 1981, he reenlisted for 6 years. 

5.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for disobeying lawful orders from a noncommissioned officer (NCO), failing to go to his appointed place of duty at the prescribed time, and for absenting himself from his unit on 16 February 1982.

6.  On 25 June 1982, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability - apathy, defective attitudes, or inability to expend efforts constructively.  The applicant was advised of his rights.  The unit commander stated the applicant had demonstrated an inability to adjust to the military and to the obey orders of his superiors.  The unit commander also stated the applicant constantly failed to respond to repeated counseling and that discharging him would be in the best interest of his unit and the U.S. Army. 




7.  The applicant acknowledged receipt of the notification, consulted with legal counsel, and did not submit statements in his own behalf.

8.  On 14 July 1982, the applicant underwent a mental status evaluation in preparation for separation.  The chief of psychiatry determined the applicant's behavior was normal, he was fully alert, fully orientated, his mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  It was also determined the applicant met the retention requirements of chapter 3 of Army Regulation 40-501 and he was cleared for any administrative action deemed appropriate by his command.   

9.  The separation authority approved the separation action on 23 July 1982, waived the rehabilitation requirements, and directed the issuance of a General Discharge Certificate.

10.  The applicant's records show that during his separation processing he was absent without leave (AWOL) from 18 July to 25 July 1982.  However, there is no record of NJP for this period of unauthorized absence.

11.  On 5 August 1982, as part of the separation physical exam, the applicant underwent a mental status evaluation that shows one significant change from the mental evaluation, dated 14 July 1982.  The applicant's mood was recorded as depressed.  The examining official found the applicant mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  In addition, the applicant had the mental capacity to understand and participate in board proceedings, if required.  The applicant also met the retention standards prescribed in Chapter 3 of Army Regulation 40-501. 

12.  The applicant's complete military medical records are not available for review.

13.  The applicant was discharged on 12 August 1982 under the provisions of Army Regulation 635-200, paragraph 13-4c(2) by reason of unsuitability – apathy, defective attitude, or inability to expend effort constructively.  He had completed 2 years, 8 months, and 8 days of total active military service with 8 days of lost time.

14.  There is no evidence of record to show the applicant applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations.


15.  As new evidence, the applicant provides his Report of Medical History showing he was examined on 5 August 1982 for the purpose of separation under the provisions of Chapter 13.  In item 9 of the self-assessment, the applicant indicated he had attempted suicide and that he had nervous problems.  The examining official, a medical doctor, reviewed the applicant's self-assessment and in his medical summary he indicated the applicant was treated for anxiety reaction.

16.  The applicant also provided a letter from the Fort Polk Assistant Inspector General showing he had requested assistance because he believed members of his chain of command mistreated him.  A battalion commander's inquiry found members of the applicant's chain of command had treated him improperly and that the battalion commander would take appropriate action against those individuals.  He further stated that the applicant would not be subject to disciplinary action as a result of the applicant's actions related to the incident.  The letter concluded by stating the incident would not have taken place had the applicant properly followed the instructions given by members of his chain of command.  

17.  References:

	a.  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 (MEB).  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.  

	b.  Army Regulation 635-40 states that MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  For an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

	c.  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.

	d.  Chapter 13 of Army Regulation 635-200 applied to separation for unfitness and unsuitability.  At that time, paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

	e.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
Para307b

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was hospitalized for a mental health condition was considered.  However, he did not provide sufficient evidence to show he received mental health in-patient treatment during his period of military service that affected his ability to serve.  Rather, he provided a Report of Medical History form showing his physical examination was for the purpose of separation.  The examining official did note the applicant had an anxiety reaction at some point during his enlistment.  

2.  The available evidence shows the applicant's mood was depressed near the end of his period of service prior to separation.  However, medical personnel did not find him unfit for duty and cleared him for separation action.

3.  The applicant must have been found medically unfit to perform the duties of his MOS within his rank to be medically discharged.  As there was no referral to an MEB or a finding of unfitness, there was no PEB.  Since there was no PEB, (and more importantly, no evidence that he required referral to the physical disability evaluation system) there can be no medical discharge.

4.  The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-4c(2) were conducted in accordance with law and regulations applicable at that time, and there is no merit in his request for a medical discharge.  

5.  The applicant's service record shows a history of acceptance of NJP and an 8-day period of AWOL with no record of disciplinary action taken by his chain of command.  Therefore, he did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and the separation authority appropriately characterized his service as general, under honorable conditions. 

6.  The applicant's narrative reason for his separation was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 13, due unsuitability-defective attitudes, or inability to expend efforts constructively.  Absent these facts there was no fundamental reason to process him for separation.  Therefore, his narrative reason for separation is correctly shown on his DD Form 214.

7.  While the applicant provided a letter from the Assistant Inspector General acknowledging members of his chain of command had mistreated him, this letter is insufficient to mitigate the circumstances that led to his discharge.

8.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20090004341, dated 18 August 2009 to change his characterization of service.





2.  The available evidence is also insufficient to change his narrative reason for separation to show he was medically discharged.



      _______ _ 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)                                         AR20090019698



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ABCMR Record of Proceedings (cont)                                         AR20090019698



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