IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100027695 


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, change of his entry level status separation to a medical discharge.

2.  He states he was mentally ill at the time of his separation.

3.  He provides his Federal Medical Center, Rochester, MN, Treatment Summary/Progress Report, dated 21 November 2008.

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 enlisted in the U.S. Army Reserve (USAR) on 17 February 1983 for a period of 6 years.

3.  On 11 July 1983, an official from the U.S. Army Minneapolis District Recruiting Command, Minneapolis, MN notified the applicant's command that the applicant was disqualified by the USAR for moral reasons (a pending assault charge).  The official stated the applicant's basic and advanced individual training reservations were cancelled.

4.  In an undated letter, with a post-stamped envelope, dated 16 August 1983, the applicant informed his sergeant that he would not be attending drill due to a court appearance.  He stated he might be invited to stay for up to a year.  He added that he felt it would be in the best interest for everyone involved if he was quickly and quietly discharged.  He also stated that to ever cross the State line into Minnesota would endanger his life and liberty.

5.  On 8 May 1985, in a letter addressed to the applicant in Hudson, WI, the unit commander notified him of his intent to initiate action to separate him under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 5-2.1, for failing to inform his Reserve unit or recruiter that charges pending against him were dropped by the Hennepin County Court many months ago.  The commander further stated that the applicant's failure to contact them demonstrated his inability to conform to the standards of military service.  The commander also stated that if separated, the applicant's service may be characterized as an entry level status separation.  

6.  The commander stated he was suspending the separation action for 45 days to give the applicant an opportunity to:

* consult with military counsel
* appear and present his case before an administrative separation board
* be represented by counsel
* submit statements in his own behalf
* withdraw his waiver of rights before the date of separation and request his case be presented to a board of officers

7.  The letter was sent by certified mail; however, it was returned to sender citing that the applicant was in their jail on 10 August 1983, but he was no longer there. The applicant's home address in Roseville, MN was provided.

8.  On 6 June 1985, the unit commander requested, through his brigade commander, that the applicant be discharged for his inability to conform to military standards.  He stated the unit had no knowledge of his whereabouts, although many attempts had been made to contact him.

9.  Orders 104-20, issued by Headquarters, Fourth U.S. Army, Fort Sheridan, IL, dated 18 June 1985, show that the applicant was discharged from the USAR effective 1 May 1985.  The authority was listed as Army Regulation 135-178 (Confirms verbal orders of Commanding General, 1 May 1985).  The type of discharge was listed as an "Entry Level Status Separation."

10.  His record is void of any evidence and he has not provided any evidence that shows he was diagnosed with any type of medical condition at the time of his separation.  There is also no evidence supporting his claim that he had a long history of mental illness.

11.  The applicant provided his Treatment Summary/Progress Report from the staff psychologist at the Federal Medical Center in Rochester, MN.  The psychologist stated the applicant was serving a 17-year sentence as a result of a conviction for several offenses, with a projected release date of 21 February 2012.  He offered that the applicant's background information indicated he had a long history of serious mental illness beginning in the 1980's.  He diagnosed the applicant with schizoaffective disorder, bipolar type.  The staff psychologist stated the applicant suffered from severe and persistent mental illness.  He concluded that the applicant would require continued mental health care whether he was in prison or residing in the community.

12.  Army Regulation 135-178 sets forth the basic authority for the separation of Army National Guard (ARNG) and USAR enlisted personnel.  Chapter 5 establishes policy and prescribes procedures for separation of enlisted members while in an entry level status.  For ARNG or USAR Soldiers ordered to Initial Active Duty Training (IADT) for one continuous period, entry-level status is the first 180 days after beginning training.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was discharged from the USAR for inability to conform to the standards of military service.  He received an entry level separation since he had not attended IADT, which is consistent with regulatory requirements.  
2.  The fact that he provides a treatment summary progress report, 23 years after his separation, that indicates he had a long history of serious mental illness beginning in the 1980's, is not sufficient justification to grant his request.  The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing or, if he did, it was not incurred while he was entitled to basic pay.  Therefore, there is no basis for a medical discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100027695



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ABCMR Record of Proceedings (cont)                                         AR20100027695



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