IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110003963 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to reflect he was honorably discharged with a more appropriate narrative reason for separation than “Physical Disability Prior to Entry on Active Duty – Medical Board.”

2.  The applicant states, in effect, he was discharged for improper reasons.  He goes on to state that he wanted to begin a new military occupational specialty (MOS) but he was sent to Fort Sill, Oklahoma and fast-tracked to be discharged for a medical condition that never existed.  He never had such a disability but the Army used it to get him out of the military. 

3.  The applicant provides a copy of his DD Form 214.

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.  After serving in the Regular Army from 2 February 1973 to 26 January 1976 and in the Reserve Component from 27 January 1976 to 6 May 1985, he enlisted in the Regular Army again on 7 May 1985 for a period of 3 years under the warrant officer flight training enlistment option.

3.  He completed basic training at Fort Bliss, Texas and was transferred to Fort Rucker, Alabama to attend the warrant officer candidate course.  On 8 October 1985 he was eliminated from the warrant officer course for failure to progress satisfactorily in the military development phase of training.  He was transferred to Fort Sill, Oklahoma to undergo training in MOS 13R (Field Artillery Firefinder Radar Operator). 

4.  On 10 October 1985, the applicant dispatched a letter to the Vice President of the United States and to his Congressional Representative requesting assistance in obtaining a discharge from the Army.  

5.  On 25 October 1985, the applicant was evaluated by the Chief, Community Health Services, Reynolds Army Hospital, Fort Sill due to complaints of depression, suicidal ideations, and that he wanted out of the military.  He indicated he had felt depressed since his divorce in 1983 and that he had the feelings daily.  He further threatened suicide if he was forced to stay in the military and indicated that he had been seen by a psychiatrist in 1983 while he was at Fort Rucker.

6.  The psychiatrist diagnosed him as having Dysthymic Disorder (a mood order consisting of chronic depression, but with less severity than major depressive disorder) and issued him a P4 profile with no duty where Soldier’s actions or inactions could be of harm to himself or others.  He recommended that the applicant be evaluated by a medical board because he did not meet the medical fitness standards of Army Regulation 40-501 due to a condition that existed prior to service (EPTS) in 1983.   

7.  A Medical Evaluation Board (MEB) determined that the applicant’s condition of Dysthymic Disorder originated in 1983 and recommended that he be referred to a Physical Evaluation Board.  The applicant indicated that he did not desire to remain on active duty and he agreed with the findings and recommendations of the MEB. 


8.  However, on 30 October 1985 the applicant submitted a request for expeditious discharge for physical disability based on the findings of the MEB that his disability was EPTS.  He further stated that he had been fully informed and understood that he was entitled to the same consideration and processing as any other member of the Army separated for physical disability and his right to be evaluated under the Physical Disability Evaluation System; however, he elected not to exercise that right and he understood that the Veterans Administration (VA) would determine his entitlement to VA benefits.  He further stated that he understood that if his discharge was approved, he would be separated by reason of an EPTS condition and that the character of his service would be determined by the officer designated to effect his separation.

9.  The appropriate authority approved his request and directed that the applicant be discharged under the provisions of Army Regulation 635-40, chapter 5, due to physical disability prior to entry on active duty – Medical Board while in an entry level status (ELS).

10.  Accordingly, he was discharged on 15 November 1985 under the provisions of Army Regulation 635-40, chapter 5, due to physical disability prior to entry on active duty – Medical Board.  He had served 6 months and 9 days of active service and his service was uncharacterized.

11.  There is no evidence in the available records to show the applicant ever applied to the Army Discharge Review Board for a change in his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-11 provides the criteria for the separation of personnel who did not meet procurement medical fitness standards when accepted for enlistment.  It states that medical proceedings must establish that a medical condition was identified by appropriate military medical authorities within 
6 months of initial active duty training which would have temporarily or permanent disqualified the member for entry into military service had it been detected at the time of enlistment.  While an honorable or general discharge may be issued when clearly warranted by unusual circumstances involving personal conduct and performance of duty, personnel who are in an ELS will receive “Uncharacterized” service.  An honorable discharge is rarely ever granted during the ELS period, which comprises the first 180 days of continuous active service or the first 180 days of continuous active service after a break in service of more than 92 days.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was unjustly and unknowingly discharged for a disability that he did not have has been noted and found to have no merit.  Every action that led to his administrative discharge was initiated by the applicant and he went so far as to waive any further medical processing in order to expedite the discharge process. 

2.  The applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights. 

3.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances and the applicant has failed to show otherwise.

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)                                         AR20110003963



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ABCMR Record of Proceedings (cont)                                         AR20110003963



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