IN THE CASE OF:	

		BOARD DATE:	    5 February 2014

		DOCKET NUMBER:  AR20130003276 


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 his records to show he was discharged for medical reasons and correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 6 May 1977 to show his separation program designator (SPD) code as "SFJ" instead of "JEM."

2.  The applicant states:

* the SPD code listed on his DD Form 214 is irregular
* his discharge under the Trainee Discharge Program (TDP) was irregular
* the injustice deprived him of immediate treatment and benefits and continues to deprive him of extended benefits
* the Army's administrative and medical procedural irregularities pertaining to the TDP produced errors and created many injustices 
* the irregularities violated Army regulations and Department of Defense directives and instructions
* he was separated under the TDP as marginal and non-productive but he was actually suffering from onset of psychosis 
* he was referred to the Mental Hygiene Consultation Service (MHCS) three times
* three Department of Veterans Affairs (VA) psychiatrists and independent psychiatrists diagnosed him with a schizophrenic disorder
* he was not properly diagnosed nor compensated due to improper administrative and medical procedures by the U.S. Army


3.  The applicant also makes reference to a previous Army Board for Correction of Military Records (ABCMR) decision summarized in ABCMR Docket Number AC89-06701.  

The applicant provides:

* DD Form 214 for the period ending 27 August 1976
* DD Form 214 for the period ending 6 May 1977
* several documents pertaining to a mental disorder diagnosis 
* service medical records

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 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 on 28 August 1973.  He served in military occupational specialty (MOS) 02C (Baritone Player) until he was honorably released from active duty on 27 August 1976.

3.  After a break in service, he again enlisted in the Regular Army, on 1 February 1977, for training in MOS 91B (Medical Specialist).  

4.  A DA Form 2496 (Disposition Form), dated 22 March 1997, Subject:  Relief of Student from Course, indicates the applicant's chain of command recommended his release from the MOS 91B course.  

5.  On 29 March 1977, he was seen and evaluated by the MHCS, Fort Sam Houston, TX, for the purpose of assisting his command in their determination of his potential for further military duty.  The following findings were made:

	a.  The service member (SM) was aware of discharge action being considered by the command.

	b.  The SM stated he wanted to soldier effectively; however, according to the command, SM continued to demonstrate a pattern of unacceptable behavior.

	c.  While the SM had been counseled repeatedly, the command stated the SM had failed to respond appropriately to the counseling efforts.

	d.  Because of the SM's failure to learn from past experiences and continuous pattern of self-defeating behavior within the military system, it was highly doubtful that the SM would successfully adjust to soldiering.

	e.  The SM was cleared by MHCS for administrative action deemed appropriate by the command to include separation.

	f.  The SM was uncooperative and displayed a high degree of arrogance during counseling.  His attitude was such that he placed responsibility on others for problems he had encountered.  He had been counseled by his commanding officer on several occasions because of his arrogant attitude and other disciplinary difficulties.  SM refused to accept guidance or counseling from MHCS.  

6.  On 5 April 1977, his immediate commander informed him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-39 (TDP).  The commander cited as the reasons for the proposed separation action the following:

	a.  The applicant had been counseled several times on his desires to either change his MOS or be discharged.

	b.  He had been disrespectful to his platoon sergeant and had repeatedly disobeyed his orders to be at ease.

	c.  At least one class had been disrupted by his arrogant and insolent manner toward the instructor.

	d.  He had been repeatedly disrespectful and insubordinate in his dealings with superiors.

	e.  He had indicated in counseling sessions that insolence and insubordination was his method of dealing with situations in which he felt that he was right and his superior was wrong.  He had stated that he would continue to utilize this method in future instances of self-interpreted injustice rather than proper military channels.  
	f.  His arrogant attitude and disrespectful manner could not be tolerated and correction of the problem was unlikely due to the repeated occurrences despite their counseling efforts.  

7.  On 3 May 1977, the appropriate authority approved the separation action and directed the applicant received an Honorable Discharge Certificate.  On 6 May 1977, he was discharged accordingly.  His DD Form 214 shows he completed 
3 months and 6 days of active duty service this period.  He was assigned SPD code "JEM."  

8.  There is no evidence in the applicant's records showing he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his discharge.

9.  He provides service medicals records that show he was seen by the MHCS on 15-16 February 1977 for questions concerning telepathy or thoughts of higher consciousness and documents with dates ranging from 31 July 2006 to 
27 December 2012 pertaining to his diagnosis of schizophrenia.  

10.  Army Regulation 635-200, in effect at the time, provided for the TDP.  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or failed to respond to formal counseling.  The regulation essentially required that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of an MOS; and must not have completed more than 179 days of active service on his or her current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.

11.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used for these stated reasons.  The regulation showed that the SPD code JEM, as shown on the applicant's DD Form 214, specified the narrative reason for discharge as "marginal or non-productive performance (TDP)" and that the authority for discharge under this SPD code was paragraph 5-39 of Army Regulation 635-200.

12.  Army Regulation 635-5-1 provides that SPD code "SFJ" pertains to enlisted Soldiers discharged under the provisions of Army Regulation 635-40 (Personnel Separations-Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1) due to a permanent disability.

13.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System 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 a medical evaluation board that is 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), chapter 3.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
	
	a.  Paragraph 2-1 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.
	c.  Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he was discharged for medical reasons and correction of his DD Form 214 for the period ending 6 May 1977 to show his SPD code as "SFJ" instead of "JEM" has been carefully considered.  

2.  The available evidence shows he was evaluated by the MHCS prior to his discharge and that he was cleared by the MHCS for administrative action deemed appropriate by his command to include separation under the TDP.  

3.  Although he was seen by the MHCS for questions concerning telepathy or thoughts of higher consciousness, his records do not show he was suffering from any medically unfitting condition that would have required him to be processed for discharge through medical channels.  The fact that, after over 25 years of his discharge, he was diagnosed as suffering from a psychiatric condition is insufficient evidence to show he was unable to perform the duties of his rank and military occupational specialty at the time of his discharge.  

4.  The applicant's arguments and documentation provided were considered.  However, the evidence of record shows that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  He was discharged under the provision of the TDP and not because of a permanent disability.  Therefore, the SPD code shown on his DD Form 214 appears to be correct and as a result, there is no basis to grant his request for a change of the SPD code.

6.  Based on the foregoing, there is no basis to grant 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)                                         AR20130003276



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ABCMR Record of Proceedings (cont)                                         AR20130003276



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