BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110021934 


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 narrative reason for separation be changed to reflect that he was discharged due to a permanent disability.

2.  The applicant states, in effect, he met medical fitness standards at the time of enlistment but was unjustly discharged for failure to meet medical fitness standards at the time of enlistment because of prior drug use, which was not true.  He goes on to state that he told a psychologist that he had been drugged and sexually assaulted by a sergeant and the psychologist told him to take the discharge and not mention the sexual assault again.  He continues by stating that he suffers from post-traumatic stress disorder (PTSD) as a result of that incident.  At the time he was in fear of further harm and signed any papers that were put in front of him because all he wanted was to get away.

3.  The applicant provides seven handwritten pages explaining his application, a statement from a licensed clinical psychologist, copies of medical treatment records, his Pardon from the Governor of Kentucky, and his enlistment and separation documents. 

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 in Louisville, Kentucky on 15 November 1972 for a period of 2 years.  He was transferred to Fort Knox, Kentucky to undergo training.

3.  His records show that on 20 March 1973, while attending advanced individual training as a cook, the applicant was referred for a mental status evaluation for drug-related difficulties.  His unit reported that he was frequently “high,” unable to concentrate on his class work, and his performance was poor. 

4.  The examining psychiatrist indicated the applicant’s drug use/abuse began approximately at age 13 and includes use/abuse of alcohol, cocaine, barbiturates, Darvon, amphetamines, hallucinogens, and cannabis derivatives.  He went on to state that there had been no decrease in his use since joining the Army.  He was a young, immature person not yet ready to accept responsibility for completion of his training and military service.  Additionally, he was not responding to rehabilitative attempts in the Army. 

5.  The psychiatrist diagnosed his condition as “drug abuse – multiple-chronic, severe” and indicated that the applicant did not meet the medical fitness standards for induction.  He issued the applicant a physical profile indicating that the applicant was unsuitable for further military training and recommended that he be suspended from further training and placed on administrative hold pending a medical review board.

6.  On 21 March 1973, while still in the hospital at Fort Knox, the applicant submitted an application for separation from the service by reason of erroneous enlistment or induction.  He stated that he had been advised that he had a medical condition which would have permanently disqualified him for entry into the military service had it been detected at the time, but it did not disqualify him from retention in the military service.  He also indicated that while he could elect to complete his service, he elected to apply for separation from the service by reason of having been erroneously enlisted.



7.  On 23 March 1973, a medical board was conducted at Ireland Army Hospital which determined the applicant was unfit for enlistment and recommended that he be discharged under the provisions of Army Regulation 635-200, paragraph 5-9 and paragraph 2-34 of Army Regulation 40-501.

8.  On 26 March 1973, the applicant indicated that he did not desire to continue on active duty and he concurred with the findings and recommendations of the board.

9.  The applicant’s request for discharge was approved and he was honorably discharged on 30 March 1973 under the provisions of Army Regulation 635-200, paragraph 5-9, due to failure to meet medical fitness standards at the time of enlistment.  He had served 4 months and 16 days of active service.

10.  A review of the available records failed to show any evidence that the applicant reported or was treated for a sexual assault while in the service.

11.  Army Regulation 635-200 sets forth the basic 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 for training which would have temporarily or permanent disqualified the member for entry into military service, had it been detected at the time of enlistment.  
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was improperly or unjustly discharged for failure to meet medical fitness standards at the time of enlistment has been noted and appears to lack merit.

2.  While there is no evidence in the available records to document actual drug use by the applicant, there is evidence to show he was command referred for a psychiatric evaluation because of his suspect behavior at the time.  It appears the applicant shared his history of drug use with the examining psychiatrist at the time, which confirmed the command’s suspicion that the applicant was using drugs.

3.  The applicant now contends that he never used drugs and that he was suffering from PTSD as a result of being sexually assaulted.  However, there is no evidence of him being sexually assaulted and it appears that he did not share that information with the psychiatrist at the time.  There is insufficient evidence to suggest that the circumstances at the time were any different than what is depicted in his record.

4.  Therefore, in the absence of evidence to the contrary it appears that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

5.  Accordingly, the type of discharge directed and the narrative reason for separation were appropriate under the circumstances and there appears to be no basis for granting the applicant’s request to change the narrative reason for separation at this time.

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)                                         AR20110021934



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ABCMR Record of Proceedings (cont)                                         AR20110021934



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