IN THE CASE OF:
BOARD DATE: 5 November 2013
DOCKET NUMBER: AR20130003806
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 medically discharged based on an unfitting medical condition.
2. The applicant states he enlisted in 1982, served on active duty in the Army, and was promoted to the rank/grade of specialist four (SP4)/E-4 with 17 months of active service.
a. He was awarded the Army Achievement Medal and received a Gold Dish for being selected Soldier of the Month while assigned to Battery A, 1st Battalion, 37th Field Artillery, Fort Richardson, AL.
b. In 1983, while performing duty as the assistant gunner during a field training exercise, he failed to have the tube of the 102 Howitzer gun raised up enough. A noncommissioned officer (NCO) yelled at him, but it was too late. The blast from firing the weapon system frightened him, he became nervous, and he started hearing sounds and voices. He also thought he was seeing things. He did not know what was happening to him, but his duty performance suddenly changed after the incident.
c. He states he has experienced traits of schizophrenia and he now suffers from post-traumatic stress disorder (PTSD) that can be related to the incident.
3. The applicant provides copies of his civilian 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 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 on 22 September 1982. He was awarded military occupational specialty 13B (Cannon Crewman).
3. On 23 March 1983, he was assigned to Battery A, 1st Battalion, 37th Field Artillery, Fort Richardson. He was promoted to SP4/E-4 on 1 February 1984.
4. The applicant accepted nonjudicial punishment on:
* 9 March 1984 for:
* disobeying a lawful order from an NCO on 13 February 1984
* failing to go at the time prescribed to his appointed place of duty on
11 February 1984
* on 16 March 1984 for failing to go at the time prescribed to his appointed place of duty on 9, 10, and 11 March 1984
5. On 5 April 1984, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance based on having exhibited a defective attitude and inability to expend effort effectively. The applicant was advised of his rights and the separation procedures involved.
6. The applicant acknowledged that he had been advised by consulting counsel 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.
a. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.
b. The applicant acknowledged he understood that if he received a discharge certificate/character of service that was less than honorable, he could make application to the Army Discharge Review Board or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.
c. He indicated that he would not submit statements in his own behalf; however, his separation packet contains a statement, dated 9 April 1984.
d. The applicant and consulting counsel each placed their signature on the document.
(1) The applicant's statement offers a summary of his accomplishments while in the Army (that the applicant also summarized in his application to this Board). He acknowledged that personal problems had arisen that made it difficult for him to function as a quality Soldier. He indicated that 10 months earlier his wife had moved away with their children and that he recently learned that his divorce had become final.
(2) Applicant's defense counsel also submitted a statement, dated 9 April 1984. Based on the applicant's record of service and considering his recent personal problems, he recommended issuance of an honorable discharge in the applicant's case.
7. The separation authority approved the recommendation for discharge of the applicant, directed that the applicant be discharged for unsatisfactory performance, and that the applicant be issued an Honorable Discharge Certificate.
8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 20 April 1984 under the provisions of Army Regulation 635-200, chapter 13, based on unsatisfactory performance. He completed 1 year, 6 months, and 29 days of creditable active service.
9. In support of his application the applicant provides copies of his post-service, civilian medical records that document his medical conditions and treatments, and the medications prescribed during the period December 1993 to November 2012. The records show, in pertinent part, a diagnosis of Schizophrenia, paranoid type, on 2 December 1993.
10. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.
11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.
a. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.
b. Paragraph 2-2b provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military record should be corrected to show he was medically discharged based on an unfitting medical condition.
2. The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason and type of discharge directed were appropriate and equitable.
3. There is no evidence of record that shows the applicant was medically unfit for military service. In fact, in the statement that he submitted to the separation authority, the applicant attributed his unsatisfactory performance to family problems. He made no mention of any medical problems.
4. The evidence of record shows that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.
a. The applicant has failed to provide sufficient evidence to overcome this presumption.
b. Therefore, the evidence of record does not support the applicant's contention that he should have been separated from the Army based on an unfitting medical condition.
5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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) AR20130003806
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130003806
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2001 | 2001052811C070420
The applicant requests correction of military records as stated in the application to the Board and as restated herein. The applicant includes a letter to the VA, continuing in this manner, and a letter to the President, stating that this Board denied his application, and stating that he had psychiatric problems. It also shows that the Army Discharge Review Board in 1992 and again in 1997 denied his request to upgrade his discharge.
ARMY | BCMR | CY2007 | 20070007918C071108
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. Army Regulation 635-40, paragraph 3-2b(2), provides that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he...
ARMY | BCMR | CY2012 | 20120009833
The applicant requests his reason for discharge be changed to physical disability. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The applicant has not provided and the record does not contain any evidence that he was unable to perform his duties because of injuries sustained while on active duty.
ARMY | BCMR | CY2001 | 2001058903C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
ARMY | BCMR | CY1996 | 9605765C070209
On 5 December 1994 the applicant stated that he understood that he was not required to undergo a medical examination for separation, however he could request one. The applicant did not have any medically unfitting disability which required physical disability processing. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.
ARMY | BCMR | CY2004 | 2004106120C070208
The applicant requests that the reason for his discharge be changed to physical disability. The applicant indicated that he did not desire a medical examination. __ Linda D. Simmons______ CHAIRPERSON INDEX |CASE ID |AR2004106120 | |SUFFIX | | |RECON | | |DATE BOARDED |20050111 | |TYPE OF DISCHARGE |GD | |DATE OF DISCHARGE |19741107 | |DISCHARGE AUTHORITY |DA MSG 011510Z August 1973 | |DISCHARGE REASON | | |BOARD DECISION |DENY | |REVIEW AUTHORITY | | |ISSUES 1.
ARMY | BCMR | CY2004 | 04104145C070208
The applicant requests reconsideration of his previous request to have his 1987 discharge for unsatisfactory performance changed to show he was discharged for medical reasons. Almost immediately, according to information contained in the service medical records the applicant provided to the Board, he began seeking medical treatment for knee pain. Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability,...
ARMY | BCMR | CY1996 | 9606461C070209
EVIDENCE OF RECORD: The applicant's military records show: The applicant enlisted in the Army Reserve in December 1972, served on active duty from February through November 1973, when she was honorably discharged. He stated, in effect, that there was no evidence of any medical condition which rendered the applicant medically unfit and justified physical disability processing. The medical evidence of record indicates that the applicant was medically fit for retention at the time of her separation.
ARMY | BCMR | CY1996 | 9606022C070209
Although the she had numerous medical problems throughout her career, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. Accordingly, the applicant was separated from active duty for reasons other than physical disability. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.
ARMY | BCMR | CY1996 | 9610330C070209
APPLICANT REQUESTS: That his military records be corrected to show that he was retired by reason of physical disability. There is no evidence of record, nor has the applicant submitted sufficient evidence which would indicate that his mental disorder was of such severity while he was serving on active duty that he should have been referred through a medical evaluation board to a physical evaluation board. The Army must find that a service member is physically unfit to reasonably perform...