IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000468 


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 uncharacterized discharge be changed to a medical discharge.

2.  The applicant states he left the service due to a medical condition caused by his service time.  He was harassed and treated badly by his drill sergeant/ supervisor and his circle which made him mentally unstable.  He also states, in effect, statements from family and friends and records for mental health services clearly show he had symptoms of post-traumatic stress disorder (PTSD) which should have been dealt with prior to his release from active duty.  He would like his discharge changed so he can get help from the Department of Veterans Affairs (VA) hospital.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his Penndel Mental Health Center (PMHC) transfer/termination summary, psychiatric evaluation, outpatient treatment plan, and progress notes; his progress note report; and one letter each from the Disabled American Veterans and the National Personnel Records Center.

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 military records show he enlisted in the Delayed Entry Program on 2 March 1988.  He enlisted in the Regular Army in pay grade E-1 on 31 March 1988 for 4 years.  He did not complete training for assignment in a military occupational specialty.

3.  On 14 and 16 April 1988, the applicant received counseling for his bad attitude and being late for formation.  On 21 April 1988, he received counseling for his unsatisfactory performance, failure to follow troop standing operating procedures (SOP), and failure to follow orders.  On 18 May 1988, he received counseling for disobeying a lawful order.  On 5 June 1988, he received counseling for disobeying an order from a noncommissioned officer (NCO), unsatisfactory performance, not being in proper uniform, and failure to follow troop SOP.  On 12 June 1988, he received counseling for a physical security violation, disobeying an order from an NCO, and lying to an NCO.  On 14 and 21 June 1988, he received counseling for missing training, lack of motivation, and malingering.

4.  On 13 June 1988, the applicant was evaluated at the Community Mental Health Service.  The evaluation showed:  he was failing to adapt to the stresses and demands of training or routine Army life, no psychiatric diagnosis was warranted, the command should review him under entry-level separation policies, he appeared doubtful for retention, it was unlikely his attitude and behavior would change, and he was very immature and poorly motivated.

5.  On 16 June 1988, the applicant's unit commander initiated action to release him from active duty under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11, for entry-level status performance and conduct.

6.  On 21 June 1988, the applicant received counseling on the possibility of his entry-level separation from the service.  He was advised his separation was being recommended because of his lack of motivation, bad attitude, discipline problems, and recommendations from the Community Health Clinic that he be separated under the entry-level separation program.

7.  On 27 June 1988 after consulting with counsel, the applicant acknowledged the proposed separation action.  He also acknowledged that he would receive an entry-level status separation with the character of his service described as uncharacterized.  He elected not to submit a statement in his own behalf and not to undergo a separation physical.

8.  On 29 June 1988, the appropriate separation authority approved the applicant's separation based on his conduct and failure to adjust to military life.

9.  The applicant was discharged from active duty in pay grade E-1 on 5 July 1988 under the provisions of Army Regulation 635-200, paragraph 11-3a, for entry-level status performance and conduct.  His service was uncharacterized.  He was credited with completion of 3 months of net active service.

10.  The applicant submitted documents from PMHC showing he was admitted to the health center in 2008 for therapy for symptoms related to a diagnosis of mood disorder.  A psychiatric evaluation, dated 22 October 2008, shows he was diagnosed with depressed-type PTSD without psychotic features, alcohol and cannabis abuse, and a herniated disc (secondary to motor vehicle accident).  He also submitted copies of his outpatient treatment plan and progress notes.

11.  In a letter, dated 6 January 2009, the Disabled American Veterans advised the applicant that material in support of his pending claims for VA benefits was being submitted.  In a letter, dated 13 July 2009, the National Personnel Records Center provided him a copy of his separation document and explained the entry-level status discharge.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-3a, provided for the separation of personnel who had completed no more than 180 days of creditable continuous active duty and had demonstrated that they were not qualified for retention because of unsatisfactory performance or conduct (or both).  The policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.  Service would be uncharacterized for separation under the provisions of this chapter.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, established the Army Physical Disability Evaluation System (PDES).  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier was found unfit because of physical disability, the regulation provided for disposition of the Soldier according to applicable laws and regulations.  Soldiers were referred into the PDES when they no longer met medical retention standards in accordance with Army Regulation 40-501, chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of the reason for his separation.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant received performance counseling related to his unsatisfactory performance, bad attitude, failure to follow troop SOP's, failure to follow orders, disobeying a lawful order, disobeying an order from a NCO, missing training, lack of motivation, malingering, and being absent from training.  A Community Mental Health Service evaluation showed he was failing to adapt to stresses and demands of training or routine Army life.  The evaluation stated a psychiatric diagnosis was not warranted and he should be reviewed under the entry level separation policies.

3.  The applicant's contentions are not sufficiently supported by his records or his application.  There is no error or injustice in his record.  He was properly discharged in accordance with pertinent regulations with due process.  The applicant acknowledged the proposed separation and that he would receive an entry-level status separation with his character of service described as uncharacterized.  The uncharacterized service was and still is appropriate and there is no basis to change it.  The description simply infers uncharacterized service, not dishonorable service.

4.  The applicant desires to have his uncharacterized entry-level status changed to a medical discharge in order to obtain assistance from the VA; however, the Board does not grant relief solely for the purpose of qualifying an applicant for assistance from the VA.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

6.  In view of the foregoing, 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)                                         AR20100000468



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)