IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100019136 


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 correction of his record to show he suffered from Post Traumatic Stress Disorder (PTSD) at the time of his discharge from the Army.

2.  The applicant states he received a bar to reenlistment (BAR) that was never entered into his military record.

3.  The applicant provides the following documents:

* DD Form 214 (Report of Separation from Active Duty)
* DA Form 4126-R (Bar to Reenlistment Certificate)
* Formal Counseling statement
* DA Form 2166 (Enlisted Efficiency Report)
* VA Form 2507 (Compensation and Pension Examination Report)

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 record shows he was initially inducted into the Army of the United States (AUS) on 25 October 1967 and continuously served until he was honorably released from active duty on 2 September 1969.  The DD Form 214 issued to him at that time shows he completed 1 year, 10 months, and 8 days of creditable military service.

3.  On 4 January 1971, the applicant enlisted in the Regular Army (RA) and continued to serve until he was discharged from active duty by reason of immediate reenlistment on 13 June 1971.  The DD Form 214 issued at that time shows he completed a total of 3 years, 6 months, and 20 days of creditable military service.

4.  On 14 January 1971, the applicant reenlisted in the RA.  He served in military occupational specialties 95B (Military Policeman) and 00E (Recruiter and Career Counselor).

5.  He was discharged for the final time on 13 June 1977, after completing a total of 9 years, 6 months, and 20 days of creditable military service.  The DD Form 214 issued at that time shows he was discharged under the provisions of chapter 2, Army Regulation 635-200, by reason of completion of required service and assigned separation designator (SPD) code “LBK”.

6.  The applicant's record is void of any medical treatment records or other documents that indicate he was ever treated for PTSD or any other disabling or disqualifying (unfitting) mental condition prior to his discharge.

7.  The applicant provides page one a DA Form 4126-R which shows a bar to reenlistment was initiated against him on 6 April 1977 based on his unsatisfactory performance in his MOS 00E and that he elected to be discharged by reason of expiration term of service.  However, the applicant did not provide page 2 of this document which would have contained the authenticated signature of the approval authority for this action to confirm it was completed and this document is not included in his OMPF.

8.  The applicant provides a Compensation and Pension Examination Report prepared by the Biloxi Veterans Administration Medical Center on 25 April 2006.  It shows he currently meets the criteria for a diagnosis of PTSD based on:

	a.  the applicant’s service medical records indicates he complained of
sleeplessness, nightmares, and anxiety upon his return from Vietnam in 1969;

	b.  his medical records (post service) indicate a significant history for
treatment of anxiety in the early 1980’s;

	c.  the applicant’s report of his personal, military, and medical history; and

	d.  he currently meets the criteria for a diagnosis of PTSD.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Chapter 2 provides for the discharge or release from active duty upon termination of enlistment, period of induction, and other periods of active duty or active duty for training.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of LBK is the appropriate code to assign Soldiers separated under the provisions of Chapter 2, Army Regulation 635-200, by completion of required service.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's Physical Disability Evaluation System (PDES) and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 1-5 states, in pertinent part, that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  Paragraph 2-2b states, in pertinent part, that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties.

12.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Paragraph 3-3b(1) 

states, in pertinent part, that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was diagnosed with PTSD.

2.  The evidence of record confirms the applicant was discharged under the provisions of Chapter 2, Army Regulation 635-200 by reason of completion of required service.  Lacking evidence to the contrary, it is presumed that the applicant’s separation processing was accomplished in accordance with the applicable regulation.

3.  Although the evidence submitted by the applicant shows the VA rendered him a current diagnosis of PTSD in April 2006, nearly 30 years after his discharge from the Army, there is no evidence to indicate he was suffering from PTSD at the time of discharge.  As a result, there is insufficient evidence to show he was suffering from a mentally or physically disabling condition that rendered him unfit to perform the duties of his grade and specialty, or that medically disqualified him from further service or warranted his separation processing through the PDES at the time.  As a result, the evidence is insufficient upon which to determine that the applicant's records in error or unjust.

4.  In view of the above, the applicant's request should be denied. 

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)                                         AR20100019136



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ABCMR Record of Proceedings (cont)                                         AR20100019136



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