IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100011103 


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 discharge under the Expeditious Discharge Program be changed to a medical discharge.

2.  The applicant states he was seen several times by various medical personnel for mental and physical problems he suffered while in the Army.  He never received adequate treatment for his problems.  He was injured while serving his country but nothing was done to help him so he could continue to serve.  He was forced out and he continues to suffer.

3.  The applicant provides no additional 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's military personnel records show he enlisted in the Regular Army on 1 July 1980 for a period of 4 years.  He completed the training requirements and he was awarded the military occupational specialty of 95B (Military Police).  On 18 October 1980, he was assigned to the 295th Military Police Company at Seneca Army Depot, Romulus, NY.

3.  On 12 March 1981, the post surgeon sent a letter to the applicant's commander in support of an expeditious discharge of the applicant due to the following reasons:  

	a.  The applicant had presented himself to the health clinic on nine separate occasions since his arrival in November 1980.  

	b.  The applicant displayed inappropriate responses to the circumstances at hand.  The most severe problem was on 15 December 1980 when he complained of low back pain of a very mild nature.  He admitted he had a "low threshold of pain" and that he frequently visits physicians for physical ailments.  

	c.  On 5 March 1981 the applicant arrived at the clinic with complaints of depression and extreme anxiety due to the separation from his wife which had occurred approximately one month prior.  A mental status examination revealed the applicant to be depressed and anxious, but no evidence of psychosis was noted.  It was believed that the applicant suffered from an adult situational reaction.  

	d.  Upon his return to the clinic on 10 March 1981 little improvement was noted.  At this time, the applicant's attitude was concerned with statements such as "I just don't think I am going to be able to adjust to Army life" and "Sometimes I am afraid I am going to explode and hurt someone."

	e.  The post surgeon stated there were several approaches to his problem; however, the most convenient and most expedient for the Army was to allow the applicant to be released from his contract and return home.  If he remained on active duty he would require constant supervision because of his immaturity.

4.  The applicant's company commander submitted a Memorandum for Record dated 13 March 1981 that included the following:

	a.  The commander stated the applicant's supervisors submitted frequent reports indicating, while the applicant was not a current disciplinary problem, he lacked the motivation and incentive to perform his duties as assigned.  


	b.  The applicant's deficient behavior was attributable, in part, to what was perceived by him to be insurmountable personal problems in his family and the necessity to be near the family.  The applicant did not have sufficient cause to apply for a compassionate reassignment or a hardship discharge.

	c.  The commander recommended that the applicant be processed under the provisions of the Expeditious Discharge Program (EDP) and issued an honorable discharge.

5.  On 7 April 1981, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-31 (EDP) of Army Regulation 635-200 (Personnel Separations) with an honorable discharge.  The commander stated the reasons for his proposed action were the applicant's lack of self-discipline, his inability to adapt socially and emotionally to military service, and his failure to demonstrate promotion potential.

6.  The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicates that such action is warranted, he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

7.  The commander also advised the applicant of his right to submit a statement in his own behalf and that he would not be permitted to apply for enlistment in the United States Army within 2 years from his date of separation.

8.  The applicant acknowledged notification of the proposed discharge action and voluntarily consented to the discharge.  He did not submit statements in his own behalf.

9.  On 21 April 1981, the appropriate authority approved the applicant’s expeditious discharge action and directed that he be furnished an Honorable Discharge Certificate.  

10.  On 23 April 1981, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200.  He had completed 9 months, and 23 days of active service that was characterized as honorable.  

11.  The applicant's service medical records were not available for review.




12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

13.  Army Regulation 635-200, then in effect, provides that those Soldiers processed under the EDP may be released from active duty and transferred to the IRR to complete their military obligation if deemed to have the potential for service under conditions of full mobilization.  Soldiers deemed to have no potential for useful service under conditions of full mobilization were to be discharged.

14.  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.

15.  Army Regulation 635-40, paragraph 2-2b(1) then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under the EDP should be changed to a medical discharge.

2.  The applicant's service medical records were not available for review.  The post surgeon did not indicate the applicant had any physical or mental conditions that would have prevented him from performing his duties.  There is no evidence that he was not medically qualified to perform his duties or that he failed to meet medical retention criteria.  There is no evidence that the applicant was referred to an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or have been retired for physical unfitness.

3.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The applicant was notified of the reasons he was being recommended for discharge and of the type of discharge that was being recommended.  The applicant voluntarily consented to the proposed discharge action.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The available records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  In view of the above evidence, there is insufficient basis to change the applicant's narrative reason for separation to show he was separated due to medical reasons.

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)                                         AR20100011103



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011103



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1