IN THE CASE OF:	  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120009494 


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 correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged by reason of disability instead of an uncharacterized discharge by reason of a "condition - not a disability."

2.  The applicant states:

* he was separated from Walter Reed Army Medical Center with a mental condition, plantar fasciitis in both feet, and hearing loss in his left  ear
* he is trying to get to White City Domiciliary for classes and housing 

3.  The applicant provides:

* DA Form 2697 (Report of Medical Assessment), dated 27 July 2007
* DD Form 2808 (Report of Medical Examination), dated 15 August 2007
* DD Form 2807-1 (Report of Medical History), dated 27 July 2007
* 2 letters from the National Personnel Records Center, dated 3 and 4 May 2012
* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), dated 25 April 2012
* 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.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years on 13 November 2006.  On 11 January 2007, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 12 January 2007.  He completed training and was awarded military occupational specialty 52D (Power Generation Equipment Repairer).  The highest rank/grade he attained while on active duty was private/E-1. 

3.  The applicant's DD Form 2807-1, dated 2 August 2006, shows he had a prior incident of driving under the influence before his enlistment in the Army.

4.  On 16 November 2006, the Commanding Officer, 16th Ordnance Battalion, U.S. Army Ordnance Mechanical Maintenance School, Aberdeen Proving Grounds, MD, issued Alcohol Consumption Policy Letter Number 15-16 which reads as follows:

     "As of 16 November 2006, until further notice, all AIT [Advanced Individual Training] Soldiers, with the exception of Phase V+, MOS-T, and ASI Soldiers, may not, at any time, purchase, possess or consume alcoholic beverages on or off-post provided they are of legal drinking age for the State of Maryland.  However, Phase V+, MOS-T, and ASI Soldiers assigned to Building 4508 who are of legal drinking age may NOT possess or consume alcoholic beverages in Building 4508."

     "Violation of this policy may result in adverse administrative action and/or punitive action under the provisions of the UCMJ [Uniform Code of Military Justice]."

5.  A DA Form 4856 (Developmental Counseling Form), dated 31 May 2007, shows the applicant was counseled for violating Policy Letter Number 15-16.  The counseling shows he failed to return from his 4-day pass on time because he was admitted to Fairchild Medical Center on 28 May 2007 at 1920 hours and discharged on 29 May 2007 at 1115 hours due to alcohol toxicity, commonly referred to as alcohol poisoning.

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 4 June 2007, shows a flag was initiated due to adverse action.

7.  A DD Form 2808, dated 7 July 2007, shows the applicant was diagnosed with plantar fasciitis, right heel.

8.  On 12 July 2007, the applicant received nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to obey an order by wrongfully consuming alcohol during Phase V duty status on 28 May 2007.

9.  On 6 August 2007, the applicant underwent a psychiatric evaluation.  The evaluating psychiatrist stated:

* the applicant had significant psychological stressors as a result of not being able to adapt to the military lifestyle
* his continued military service might lead to future hospitalizations, psychological decompensation, and suicidal ideation
* his problems were not amendable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military
* expeditious separation from the military under Army Regulation 635-200 (Enlisted Separations), chapter 5-17 was recommended
* he was diagnosed with the following:

*	Axis I:  Alcohol Abuse, Clonazepam Abuse
*	Axis II:  antisocial and narcissistic traits
*	he had no psychiatric disease or defect that warranted disposition through medical channels

10.  A DD Form 2697, dated 15 August 2007, shows the applicant was diagnosed with plantar fasciitis.  The applicant indicated he had a sore right foot after his completion of basic training at Fort Knox, KY.  He indicated he injured his foot on the first road march and was unable to walk on his foot for a month.

11.  A DA Form 4856, dated 24 August 2007, shows the applicant had been referred to the Community Mental Health Clinic in which an evaluation determined he had a personality disorder.  Further, he was being considered for separation under the provisions of Army Regulation 635-200, chapter 5-17.
12.  A DA Form 3997 (Military Police Desk Blotter), dated 2 September 2007, shows the applicant was reported as being absent without leave (AWOL) at 0900 hours the same date.

13.  U.S. Army Training and Doctrine Command (TRADOC) Operations Reports, dated 8 through 10 September 2007, show:

* the applicant turned himself in from his AWOL status with a strong order of alcohol on his breath
* he was read his rights; however, he waived his right to counsel
* after he admitted to drinking, his commander was contacted and he authorized a breathalyzer test
* the applicant had a .091 blood alcohol content
* he was counseled and administered a urinalysis
* the applicant  took 30 ibuprofen pills while on a 24-hour detoxification watch on 10 September 2007 and was transported to Hartford Memorial Hospital
*	he was picked up from Hartford Memorial Hospital and transported to Walter Reed Army Medical Center; no diagnosis was given

14.  In an undated letter, the applicant's immediate commander notified the applicant of his (the commander's) intent to initiate separation action against him (the applicant) for a mental condition.  He recommended an uncharacterized discharge.

15.  The applicant acknowledged receipt of the separation notification memorandum and waived his right to consult with legal counsel.  He also acknowledged he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Further, he acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

16.  A DA Form 268, dated 24 September 2007, shows the applicant's flag was removed.  Additionally, the applicant was recycled in Phase I of his Power Generator Repairer training.

17.  On 24 September 2007, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of other designated physical or mental condition, not a disability, with an uncharacterized discharge.

18.  The applicant was accordingly discharged on 27 September 2007 under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability, with an uncharacterized discharge.  He was assigned a separation code of "JFV."  This form also shows he completed 8 months and 9 days of creditable active service.

19.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 5-17 states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  Members separated under this provision of the regulation will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.

20.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies the SPD of "JFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability.

21.  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 or her office, grade, rank, or rating.  It provides for medical evaluation boards 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 Army Regulation 40-501 (Standards of Medical Fitness).

22.  Paragraph 3-1 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are 
physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501, chapter 3.  

23.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 2 governs physical standards for enlistment.  Chapter 3 governs medical fitness standards for retention and separation.

	a.  Paragraph 3-35 states a history of personality disorder renders an individual administratively unfit rather than unfit because of physical illness or a medical condition.  These conditions will be dealt with through administrative channels.

	b.  Paragraph 2-27o states current or history of alcohol dependence, drug dependence, alcohol abuse, or other drug abuse does not meet the standard.  Alcohol-related conditions are not listed in chapter 3.

	c.  Paragraph 3-13(5) states plantar fasciitis or heel spur syndrome that is refractory to medical or surgical treatment, interferes with the satisfactory performance of military duties, or prevents the wearing of military footwear causes referral to a medical evaluation board (MEB).

24.  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 at least a 30% disability rating percentage.  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%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of item 28 of his DD Form 214 to show he was discharged by a medical reason for disability instead of an uncharacterized discharge by reason of a "condition - not a disability" was carefully considered.

2.  The applicant was diagnosed with alcohol abuse, medication abuse, and traits of personality disorder (antisocial and narcissistic traits).  His psychiatric 


evaluation shows he had no psychiatric disease or defect that warranted disposition through medical channels.  None of those conditions are listed in chapter 3 of Army Regulation 40-501 as rendering an individual eligible for physical disability separation processing.  Further, expeditious separation was recommended.

3.  Although the applicant believes his plantar fasciitis should be sufficient for a medical discharge, his record does not show and he does not provide evidence which shows his plantar fasciitis rose to a level warranting referral to an MEB or he failed to meet retention standards.  He was diagnosed with a mental condition which impaired his ability to perform military duties.  However, again, that mental condition did not render him eligible for physical disability separation processing.  Therefore, based on the severity of his ability to adapt to the military lifestyle, his separation under the provisions of Army Regulation 635-200, paragraph 5-17, due to a medical condition - not a disability, was appropriate.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His narrative reason for separation is correctly shown on his DD Form 214 and he has provided insufficient evidence to warrant changing this reason.

5.  Requests for change of narrative reason for separation are not granted solely for the purpose of making the applicant eligible for veteran benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her reason for separation. 

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)                                         AR20120009494



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ABCMR Record of Proceedings (cont)                                         AR20120009494



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