IN THE CASE OF:	  

		BOARD DATE:  6 July 2010	  

		DOCKET NUMBER:  AR20090021752 


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 general discharge be changed to an honorable or a medical discharge.

2.  The applicant states:

* his discharge was based on patterns of misconduct
* his service in Operation Desert Storm was not considered
* he was not evaluated for post-traumatic stress disorder (PTSD)
* since his discharge he has been diagnosed as bipolar, major depressive, and as having PTSD
* he feels his discharge should have waited and the proper psychiatric testing should have been done at that time 

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 on 4 October 1989 for a period of 3 years.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 88H (cargo specialist).  He served in Southwest Asia from 11 August 1990 to 7 August 1991.

3.  Between 10 December 1991 and 29 June 1992, the applicant was counseled for various infractions which included failing to report to his appropriate place of duty on time, missing formations, failing to repair, and apathy.

4.  On 2 June 1992, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order and using disrespectful language.  His punishment consisted of a reduction to E-3, a forfeiture of pay (suspended), and extra duty.

5.  On 21 July 1992, the applicant underwent a mental status evaluation.  His clinical diagnosis impression was "no psychiatric diagnosis."  He was found mentally responsible and cleared for any administrative action deemed appropriate by his command.

6.  On 29 July 1992, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of "111111."  In item 8 (Statement of Examinee's Present Health and Medications Currently Used) of his Standard Form 93 (Report of Medical History), dated 29 July 1992, he reported that he was in "exceptional health" and "using no medications."

7.  On 13 August 1992, NJP was imposed against the applicant for being absent without leave (AWOL) from 7 July 1992 to 17 July 1992.  His punishment consisted of a reduction to E-1, a forfeiture of pay (suspended), restriction, and extra duty.

8.  On 28 August 1992, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for misconduct - pattern of misconduct.  The unit commander cited the applicant's two nonjudicial punishments and numerous counseling statements.

9.  On 31 August 1992, after consulting with counsel, the applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued and he elected not to submit a statement on his own behalf.

10.  On 21 September 1992, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

11.  Accordingly, the applicant was separated with a general discharge on 2 October 1992 under the provisions of Army Regulation 635-200, paragraph 
14-12b, for misconduct - pattern of misconduct.  He had served a total of 2 years, 11 months, and 19 days of creditable active service with 10 days of lost time.

12.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

14.  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.

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

16.  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 is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

17.  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 a disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not evaluated for PTSD and the proper psychiatric testing should have been done at that time.  However, the medical evidence of record shows he underwent a mental status evaluation on 21 July 1992 and his clinical diagnosis impression was "no psychiatric diagnosis."  In addition, he reported he was in exceptional health and he was found mentally responsible and cleared for any administrative action deemed appropriate by his command.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The applicant's record of service included numerous adverse counseling statements, two NJP's, and 10 days of lost time due to AWOL.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  There is no evidence to show that the applicant could not perform his duties while on active duty.  Therefore, there is insufficient evidence to show a medical discharge was warranted.



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)                                         AR20090021752



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ABCMR Record of Proceedings (cont)                                         AR20090021752



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