IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110005895 


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 change of his under other than honorable conditions discharge to a medical discharge.

2.  The applicant states he was diagnosed with depression with "scyzo affective disorder" in September 1990, 1 year after his discharge.  He adds that he had a diagnosis in 1989 in Germany and then he made some financial mistakes which caused his discharge.

3.  The applicant provides no additional evidence in support of his application.

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.  Having prior Army Reserve Component service, he enlisted in the Regular Army on 2 January 1985.

3.  Orders 256-273, issued by the 520th Personnel Service Company, Composite Team Bad Kreuznach, dated 21 November 1988, show he was relieved from active duty not by reason of physical disability and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  His DD Form 214 for this period of active service shows he was honorably discharged on 14 December 1988 by reason of expiration of term of service.

4.  On 30 December 1988, he again enlisted in the Regular Army.  The highest rank/grade he held was specialist (SPC)/E-4.

5.  His record is void of any medical documents and he did not provide any documents pertaining to any mental diagnosis or illness during or after his military service.

6.  The applicant's discharge packet is not available for review.  However, his record contains a DD Form 214 for the period ending 11 September 1989 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with an under other than honorable conditions discharge.  His DD Form 214 shows he completed 8 months and 12 days of active service during this period.  This form further shows he completed 4 years, 3 months, and 17 days of total prior active service and 3 years, 6 months, and 16 days of total prior inactive service.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  It 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.  It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

9.  Army Regulation 635-40 further provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition.

10.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10.  In order to be discharged under this provision the applicant would have voluntarily requested discharge in lieu of a trial by court-martial.

2.  He contends he was diagnosed with depression with schizoaffective disorder 1 year after his separation and that he was diagnosed in 1989 while in Germany.  He implies that his mental state was the basis for his making some financial mistakes which caused his discharge.

3.  While the applicant's medical records are not available for review, the ABCMR starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Absent evidence to the contrary, it is concluded the Army found no evidence he had an unfitting diagnosis that would have required an MEB.  It is presumed that competent medical personnel determined he was fit for duty at the time since he was discharged under the provisions of Army Regulation 635-200, chapter 10.  As such, the applicant has not provided sufficiently convincing evidence or argument to form a basis to change his properly issued discharge to a discharge due to medical reasons.

4.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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)                                         AR20110005895



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ABCMR Record of Proceedings (cont)                                         AR20110005895



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