IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100015329 


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 that his general discharge be upgraded to honorable and, in effect, that the narrative reason for separation be changed.

2.  The applicant states, in effect, he was not discharged for failure to maintain; instead, he was discharged due to a mental disorder he had previously discussed with a chaplain and a medical doctor at Fort Hood, TX. 

3.  The applicant provides no 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 24 June 1980 for a period of 
3 years.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty 94B (Food Service Specialist).  

3.  On 11 December 1980, nonjudicial punishment (NJP) was imposed upon him for failure to go at the prescribed time to his appointed place of duty, to wit, the dining facility.  His punishment consisted of forfeiture of pay and 7 days at the Correctional Custody Facility.

4.  A copy of the applicant’s DA Form 2-1 (Personnel Qualification Record, Part 1), prepared on 6 January 1981, shows his physical profile factors as 112111.

5.  The available records contain a DA Form 2496 (Disposition Form – Notification of Recommendation for Administrative Elimination), dated 
24 February 1981.  This form shows the applicant was being considered for separation under the provisions of chapter 5 (Expeditious Discharge Program), Army Regulation 635-200 (Enlisted Personnel).  

6.  The facts and the circumstances surrounding the applicant's discharge are not contained in the available records; however, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 April 1981 with a General Discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-31h(2), under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had completed 9 months and 22 days of total active service with no lost time.

7.  Item 28 (Narrative Reason for Separation) on the applicant's DD Form 214 shows the entry, "Failure to maintain acceptable standards for retention."

8.  There is no evidence in the available records which shows the applicant was diagnosed with a mental condition prior to his separation on 15 April 1981.

9.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

10.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards 


required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

11.  Army Regulation 635-200, paragraph 3-7, 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.  

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that he was discharged based on a mental illness.  His DD Form 214 indicates he was discharged for failure to maintain acceptable standards for retention.

2.  The applicant's discharge packet is not available for review; however, in the absence of evidence, it is reasonable to presume that 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.  

3.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.  The available record shows he accepted NJP for failing to go at the prescribed time to his appointed place of duty.  His record contains no indication of a diagnosis of mental disorder prior to his separation.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge and there is insufficient evidence on which to base changing his narrative reason for separation.

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)                                         AR20100015329





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ABCMR Record of Proceedings (cont)                                         AR20100015329



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