BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100025096 


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 General Discharge, under honorable conditions be changed to a medical discharge.  

2.  He states he suffered from Post Traumatic Stress Disorder (PTSD) and other mental health problems as verified by Army medical personnel prior to his discharge under the provisions of chapter 14, Army Regulation 635-200.  He contends he was unaware of his options and rights at the time; however, his Standard Form 88 (Report of Medical Examination) shows he was cleared for a medical discharge for depression. 

3.  He provides:

* an extract of his Army medical records
* an SF 88

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.  His military personnel record shows he enlisted in the Regular Army on
13 August 1997 for 3 years.  Upon completion of training, he served in military occupational specialty 13E (Cannon Fire Direction Specialist).

3.  On 8 June 1998, he was given a medical examination for the purpose of separation action under the provisions of chapter 14, Army Regulation 635-200.  His SF 88 shows in item 74 (Summary of Defects and Diagnoses) he was diagnosed with depression.  Item 75 (Recommendations) indicates he was recommended for follow-up care with Community Mental Health.  Item 77 (Examinee) shows he was qualified for separation under the provisions of chapter 14, Army Regulation 635-200.

4.  His records are absent of documentation surrounding the facts and circumstances of his separation action.  However, item 21 (Lost Time) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he had 66 days of lost time due to being absent without leave (AWOL) and 19 days of confinement. 

5.  On 10 July 1998, he was treated by Army medical personnel after being assaulted by five other Soldiers.  He sustained multiple injuries to his head, face, eyes, nose, teeth, ears and lungs.  He was released the same day and given 
24-hour quarters. 

6.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 10 November 1998, under the provisions of Army Regulation 635-200, paragraph 14-12c, Misconduct.  He had completed 1 year of net active service and had 85 days lost time.  He was issued a DD Form 257 (General Discharge Certificate).

7.  His records contain no evidence to show that he suffered from a disabling condition at any time during his active duty tenure that would have warranted his separation processing through medical channels.

8.  His records show he enlisted in the Tennessee Army National Guard (TNARNG) on 26 April 2000 and he served as an active member until his honorable release on 25 April 2001.  After a break, he enlisted in the Oregon ARNG (ORARNG) on 14 May 2001 and served as an active member until his transfer to the U.S. Army Reserve Control Group (Reinforcement) on 13 May 2004. 

9.  He provided a medical document that shows, during his enlistment in the ORARNG, he was seen at Brooke Army Medical Center on 22 February 2002, for major depression.  The attending physician noted that the applicant was unable to take Prozac, Zoloft or Celexa, and he needed to find new medication for his psychological disorder.  He prescribed the applicant Serzone and scheduled a follow-up appointment with him after one week.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth 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.

DISCUSSION AND CONCLUSIONS:

1.  His request to change his General Discharge, under honorable conditions to a medical discharge for PTSD has been carefully considered.  However, the evidence is insufficient to support this request. 

2.  By regulation, a Soldier must be unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army PDES.  The evidence of record provides no indication the applicant suffered from a physically or mentally disqualifying condition that would have supported his separation processing through the Army PDES at the time of his separation on
10 November 1998.  To the contrary, he served in both the TNARNG and ORARNG subsequent to his release from active duty, indicating he was medically fit in 1998. 

3.  The fact that his SF 88, dated 8 June 1998 shows he was diagnosed with depression does not mean he was determined to be so unfit as to require processing through medical channels, and the examining medical officer at the time indicated just that by clearing him for separation action under the provisions of chapter 14, Army Regulation 635-200.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on the processing procedures for separation and specific guidance in determining the character of service and description of separation.  

5.  In view of the foregoing, he is not entitled to 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)                                         AR20100025096





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ABCMR Record of Proceedings (cont)                                         AR20100025096



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