IN THE CASE OF:	  

		BOARD DATE:	  13 April 11

		DOCKET NUMBER:  AR20100023287 


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, correction of his record to show he was discharged for medical reasons. 

2.  He states he believes he should have been discharged for medical reasons not for a personality disorder.  

3.  He provides:

* his original DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* a reissued DD Form 214 with the correct character of service, separation authority, separation code, reenlistment code, and narrative reason for separation
* a letter pertaining to his reissued DD Form 214
* a statement from one of his older brothers
* a letter from Dr. D____ W. F______, dated 23 November 1979
* a Standard Form 93 (Report of Medical History) dated 7 December 1979
* progress notes from a Department of Veterans Affairs Medical Center (VAMC)
* a Standard Form 600 (Chronological Record of Medical Care)
* a Standard Form 513 (Consultation Sheet)




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 U.S. Army Reserve (USAR) in the Delayed Enlistment Program on 16 February 1978.  On 16 March 1978, he enlisted in the Regular Army for a period of 3 years.  

3.  A Standard Form 88 (Report of Medical Examination) shows he underwent a medical examination at the time of his enlistment.  The physician who conducted the examination found no disqualifying defects and found him qualified for military service.  

4.  As part of his enlistment processing, a Standard Form 93 would have been completed.  One of the purposes of this document is to record medical conditions he had at the time or had experienced in the past.  This document is not available in his record.

5.  After completing initial entry training he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator) and assigned for duty with the 12th Transportation Company at Fort Leonard Wood, MO, where he served from 28 July 1978 through 30 September 1979.  

6.  The record shows he served successfully with the 12th Transportation Company.  

	a.  He received letters of commendation and appreciation from his commander.

	b.  He received the maximum possible score on his Enlisted Evaluation Report (EER) for the period July 1978 through June 1979.  

	c.  He was promoted to specialist four/E-4 on 16 June 1979.  
	d.  An Enlisted Evaluation Data Report dated 27 August 1979 shows his Enlisted Evaluation Report Weighted Average (EERWA) was higher than 95 percent of Soldiers in his MOS and pay grade.  

7.  In August 1979, he received orders to proceed on permanent change of station to Korea.  A DD Form 1482 (MAC Transportation Authorization) shows he was to report to Travis Air Force Base on 5 November 1979 to travel to Korea.

8.  His DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) he was absent without leave (AWOL) from 5 November to 5 December 1979.  

9.  On 6 December 1979, he was assigned to the Processing Company, U.S. Army Personnel Control Facility, Fort Ord, CA.  

10.  On 13 December 1979, his commander advised him he was being considered for separation for unsuitability under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-4b.  His commander also advised him of this right to:

* consult with a consulting counsel
* present his case before a board of officers
* submit a statement on his own behalf
* be represented by counsel
* waive the above rights in writing
* withdraw his waiver of rights prior to the date the discharge authority directed or approved his discharge

11.  An FO Form 1-64 (Record of Informal Counseling Session) shows his commander noted he had a problem in speech and motor skills, had a psychological problem, and did not want to leave the United States.  The space provided for the applicant's response shows the statement "[Service member] wants a discharge!"

12.  As part of his discharge processing, his commander completed an FO Form 1-65 (Discharge for Misconduct/Unsuitability under AR 635-200).  The form shows his commander did not consider it feasible or appropriate to effect other disposition and stated further efforts to rehabilitate him would be unsuccessful.

13.  A memorandum from a psychiatrist at the Community Mental Health Activity (CMHA), dated 7 January 1980, shows he was referred by his commander for psychiatric evaluation.  The evaluation shows:
* he had a history of mental and physical difficulties present since his neonatal infancy
* he had multiple evaluations for movement disorder, as well as hyperactivity and shortened attention span
* some of his pre-service medical records cast doubt on a diagnosis of cerebral palsy, but seemed consistent in diagnosing a mild movement disorder of the choreoathetosis type, secondary to an episode of kernicterus
* he was found to meet retention standards with regard to his mental faculties
* he had a passive dependent immature personality disorder that fell under Army Regulation 635-200, paragraph 13-4b
* he was responsible for his actions and possessed the mental and emotional capacity to understand and participate in board and other legal proceedings
* he was cleared by the CMHA for administrative action deemed appropriate
* he was not amenable to punishment, retraining or other form of rehabilitation within the military
* he was not motivated for further military service

14.  On 16 January 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for absenting himself from his organization without authority from 5 November to 6 December 1979.  

15.  On 17 January 1980, he acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him for unsuitability and its effects, the rights available to him, and the effect of waiving those rights.  He waived his right to: 

* consideration of his case by a board of officers
* appear before a board of officers
* submit statements on his own behalf
* consulting counsel and representation by counsel

16.  On 1 February 1980, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 13-4b, and directed he receive an Honorable Discharge Certificate.  On 11 February 1980, he was discharged accordingly and his service was characterized as honorable.  He completed 1 year, 9 months, and 25 days of total active service with 31 days of lost time.
17.  The record shows he was initially issued a DD Form 214 showing he had been discharged under the provisions of Army Regulation 635-20, Chapter 10, with a character of service of under other than honorable conditions.  

18.  On 17 March 1980, his DD Form 214 was reissued.  The reissued form shows the character of service, separation authority, and separation code directed by the separation authority.  Item 28 (Narrative Reason for Separation) of this DD Form 214 shows "Unsuitability - Personality Disorders."

19.  He provides a Standard Form 513 (Consultation Sheet) and a Standard Form 600 (Chronological Record of Medical Care) from his service medical records.  

	a.  The Standard Form 513 shows, on 19 December 1979, a physician found he was not eligible for entry into the Army under the provisions Army Regulation 40-501 (change 27), paragraph 2-31b(3)(4) due to a history of cerebral palsy secondary to kernicterus. 

	b.  The Standard Form 600 shows, on 15 January 1980, another physician reviewed his records and found he was medically acceptable for enlistment and further military service. 

20.  The letter he provides from Dr. D____ W. F______ is included in his record.  Dr. F______ states the recruiter was "a bit hasty" in recruiting him, that he would always be emotionally immature due to cerebral palsy, that he had a dependent personality, problems adjusting in school, and an athetoid condition.  He recommended a psychiatric evaluation and an honorable medical discharge.

21.  His brother states he was aware the applicant had cerebral palsy, but that their parents thought it best not to tell him.  He further states, in effect, that the applicant's feelings of disgrace over his discharge have led to problems with substance abuse and finding better employment.  He concludes by stating that the Army should not have enlisted the applicant and would not have done so if his medical records had been reviewed prior to enlistment.

22.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  

	a.  The version of the regulation in effect at the time stated the following miscellaneous neurological disorders were causes for rejection for enlistment:

* paralysis or weakness, deformity, discoordination, pain, sensory disturbance, intellectual deficit, disturbances of consciousness, or personality abnormalities regardless of cause which is of such a nature or degree as to preclude the satisfactory performance of military duty

* tremors, spasmodic torticollis, athetosis or other abnormal movements more than mild

	b.  The regulation also stated disorders usually first evident in infancy, childhood or adolescence, to include primary mental deficiency or special learning defects, or developmental disorders, did not render an individual unfit because of physical disability but could result in administrative unfitness if the individual did not show satisfactory performance of duty.

23.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to personality disorder.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

24.  The version of Army Regulation 635-5-1 (Personnel Separations - Separation Program Designators) in effect at the time provided that item 28 of the DD Form 214 would show "Unsuitability-Personality Disorder" as the narrative reason for separations under the authority of Army Regulation 635-200, paragraph 13-4b. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to show he was discharged for medical reasons.  

2.  Though the record shows he had developmental problems and was diagnosed with a personality disorder, these were not medically unfitting under the governing regulation.  He was also diagnosed with a movement disorder (athetosis), but there is no evidence that this disorder was more than mild.  

3.  Regardless of his diagnoses, his exemplary service with the 12th Transportation Company indicates he was not only fit for service, but had adapted well to military service.  

4.  His separation for unsuitability due to a personality disorder was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100023287





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ABCMR Record of Proceedings (cont)                                         AR20100023287



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