IN THE CASE OF:	  

		BOARD DATE:	    8 November 2011

		DOCKET NUMBER:  AR20110007947 


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 her uncharacterized discharge be changed to honorable and her narrative reason for separation be changed to medical.

2.  She states the documents she signed pertaining to her discharge were not explained to her.  She was on antidepressant medication and did not know what she was doing at the time of her discharge.

3.  She provides her reissued DD Form 214 (Certificate of Release or Discharge from Active Duty), three military medical documents, a Chatt-Flint Mental Health/Mental Retardation/Substance Abuse Services client history, and a DA Form 3822-R (Report of Mental Status Evaluation).

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.  Her military records show she enlisted in the Regular Army on 7 February 1990.  She did not complete initial entry training.  The highest rank/pay grade she held was private/E-1.

3.  Her records show she was counseled several times due to repeatedly failing a diagnostic physical fitness test, failing basic rifle marksmanship, being overweight, lacking motivation, and refusing to train.

4.  On 30 March 1990, she accepted nonjudicial punishment for disobeying a lawful order by refusing to train.

5.  A DA Form 4856 (General Counseling Form), dated 3 April 1990, indicated she was being recommended for separation under the provisions of Army Regulation 635-200 (Personnel Separations) due to being a disciplinary problem since her arrival at basic training, two incidents of refusing to train, and other motivational/attitude problems.  The counselor indicated she had four attempts to meet basic rifle marksmanship standards.

6.  A DA Form 3822-R shows she was sent for a mental status evaluation as part of an examination for administrative discharge from the Army.  The evaluation report showed she was fully alert, clearly thinking, having normal thoughts and good memory, with an anxious and depressed mood.  The report further indicated she had the mental capacity to understand and participate in the discharge proceedings and was mentally responsible.  The evaluation provided findings that she was not able to overcome her initial adjustment problems, her mental status had begun to deteriorate, and her earlier suicidal thoughts had returned.  The report indicated that despite her best efforts to train, she was unable to withstand the normal stress of training.  Further attempts to train would probably prove futile.  It recommended her removal from training and discharge without delay.

7.  On 3 April 1990, her commander recommended her separation under the provisions of Army Regulation 635-200, chapter 14, section III, paragraph 14-12, for refusal to train for the second time.  Her commander indicated she had been sent to Community Mental Health Services for counseling.

8.  A memorandum, Company E, 787th Military Police Battalion, dated 3 April 1990, subject:  Separation under Army Regulation 635-200, Chapter 14, indicates she was advised by her consulting counsel of the basis for the contemplated action to separate her for her acts of misconduct under the provisions of chapter 14, Army Regulation 635-200, and its effects; of the rights available to her; and the effect of any action taken by her in waiving her rights.  She waived her rights.  This document contains her signature and initials but it does not contain the signature of counsel.

9.  On 5 April 1990, the separation authority approved her entry-level separation (uncharacterized) under the provisions of Army Regulation 635-200, chapter 14, section III, paragraph 14-12c.

10.  On 10 April 1990, she was discharged accordingly.  The DD Form 214 she was issued shows she was discharged from active duty with an uncharacterized character of service after completing 2 months and 4 days of active service.  This form shows she was given a narrative reason for separation of "misconduct, commission of a serious offense."

11.  On 3 February 1998, the Army Discharge Review Board (ADRB) denied the applicant's appeal for an upgrade of her uncharacterized discharge.  However, during the review the ADRB determined the authority and reason for her discharge should be changed from Army Regulation 635-200, paragraph 14-12c (Misconduct – Commission of a Serious Offense), to Army Regulation 635-200, paragraph 5-3 (Secretarial Authority).  She was reissued a DD Form 214 reflecting this change.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 provides that a separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.

13.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

14.  Army Regulation 635-200, paragraph 5-3, provides for the separation of Soldiers for the convenience of the government.  The separation of any Soldier of the Army under this authority will be based on a Secretary of the Army determination that separation is in the best interests of the Army.

15.  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 Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of a physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states 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.

16.  Army Regulation 635-40 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.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition.

17.  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 or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  Regulatory policy provides that a separation will be described as entry level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.  The applicant was in the first 180 days of continuous active duty service.

2.  She was counseled for failure to obey an order, refusal to train, lack of motivation, failure of diagnostic physical fitness tests, and failure of basic rifle marksmanship.

3.  The report of mental status evaluation completed in conjunction with her administrative discharge processing from the Army showed she was fully alert, clearly thinking, having normal thoughts and good memory, with the mental capacity to understand and participate in the discharge proceedings and was mentally responsible.  This report further indicated she was found to have adjustment problems and that she was unable to withstand the normal stress of training.  The mental evaluation report indicated further attempts to train would probably prove futile and recommended removal from training and discharge without delay.  There is no evidence she was medically unable to perform training or other duties and there was no mental disorder diagnosed.

4.  The memorandum indicating she was advised by consulting counsel of the basis for the contemplated action to separate her for her acts of misconduct under chapter 14, Army Regulation 635-200, does not contain a counsel's signature.  However, since the memorandum contains her signature and initials, it must be presumed she received and understood the counseling and the effects of her discharge.  There is no evidence that she did not understand what she signed.  As such, there is no basis to change the characterization of service or the narrative reason for separation from that currently shown on her DD Form 214.

5.  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 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)                                         AR20110007947



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ABCMR Record of Proceedings (cont)                                         AR20110007947



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