IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002294 


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 unsuitability discharge to a medical discharge. 

2.  The applicant states that he was sick, he had tried to overdose with pills, and nobody took it seriously.

3.  The applicant provides:

* a five-page document from the Columbia, SC Department of Veterans Affairs Medical Center
* two pages of his Standard Form (SF) 88 (Report of Medical Examination)

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 3 August 1977 at the age of 20 years, 8 months, and 20 days.  He completed One Station Unit Training and he was awarded military occupational specialty 13B (Field Artillery Crewman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record) shows that on 10 November 1977 he was assigned to Battery A,
1st Battalion, 7th Field Artillery, Fort Riley, KS.

4.  His service record contains a history of counseling by members of his chain of command, the assistant division artillery chaplain, and mental health professionals which state, in effect, that the applicant was not capable of adapting to military life, he had an immature personality, and he suffered from depression which was precipitated by his grandmother’s death in July 1977.

5.  On 14 December 1977, the applicant's immediate commander notified the applicant of his intent to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
paragraph 13-5b(2) for unsuitability due to apathy, defective attitude, or inability to expend effort constructively.  The immediate commander stated the applicant was incapable of adjusting to military life and he would not benefit the service through continued active duty.

6.  On 14 December 1977, the applicant acknowledged he had been notified of the pending separation action against him and on 28 December 1977, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability.  The applicant waived consideration of his case by a board of officers, personal appearance before a board of officers, and he elected not to submit a statement in his own behalf.  On the same day, the unit commander submitted the applicant's recommendation for separation.

7.  On 4 January 1978, the intermediate commander recommended approval of the separation action.

8.  On 6 January 1978, the separation authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, paragraph 13-5b(2) with an Honorable Discharge Certificate.


9.  On 12 January 1978, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph
13-5b(2) with issuance of an Honorable Discharge Certificate and a separation program designator (SPD) code of JMB.  He completed 5 months and 10 days of total active service.

10.  There is no evidence in the applicant's personnel service record or available medical record which shows the applicant was treated for an overdose.

11.  The applicant provides medical records which document treatment he received subsequent to his Army service.  These records show he was being treated for numerous ailments to include bi-polar disorder.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

13.  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 office, grade, rank, or rating.  It provides for a medical evaluation boards (MEB) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also states the following:

	a.  Paragraph 2-1 provides that the mere presence of impairment does not 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 2-2b(1) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 2-2b(2) states that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

	d.  Paragraph 2-2b(3) states that when the member's referral for physical evaluation is related to physical examinations given as a part of non-disability retirement processing (voluntary or mandatory), the above evidence must be clear and convincing to overcome the presumption of fitness.  In other cases (resignation, reduction in force, release from active duty, administrative separation, discharge, etc.), the presumption of fitness may be overcome by a preponderance of evidence.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination, are those that:

* significantly limit or interfere with the Soldier's performance of his or her duties
* may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service; this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring
* may compromise the health or well-being of other Soldiers
* may prejudice the best interests of the government if the individual were to remain in the military service

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent (%).  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

16.  Title 38, U.S. Code, sections 1110 and 1131, permits the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the DVA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

17.  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.  It states that the SPD code JMB is the appropriate code to assign to Soldiers separated under the provisions of 
Army Regulation 635-200, paragraph 13-5b(2) for unsuitability due to apathy, defective attitude, or inability to expend effort constructively.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his unsuitability discharge should be changed to a medical discharge has been carefully considered.  Unfortunately, there is insufficient evidence to support this request.

2.  The purpose of the PDES is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and to provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

3.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

4.  There is no evidence in the available record and he did not provide any evidence which shows he attempted to overdose on pills or that he was diagnosed with a medical condition which would have warranted his entry into the PDES.  Therefore, there is no evidence to show he had a condition which could have been a basis for a medical discharge.

5.  The applicant's record reveals he was provided with multiple counselings by his chain of command, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

6.  The evidence of record shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors which would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  Additionally, the reason for discharge was both proper and equitable.


7.  The applicant has not presented evidence which indicates he was medically unfit to perform his duties prior to separation in January 1978.  The applicant has not shown error, injustice, or inequity for the relief he requests.

8.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110002294



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ABCMR Record of Proceedings (cont)                                         AR20110002294



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