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ARMY | BCMR | CY2013 | 20130007091
Original file (20130007091.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:  23 January 2014

		DOCKET NUMBER:  AR20130007091 


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 his uncharacterized discharge be changed to an honorable discharge or medical retirement due to a service-connected disability.

2.  The applicant states he received a medical discharge due to having a nervous breakdown while on active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged due to a disability that existed prior to service (EPTS) with a character of service of "uncharacterized." He wants his DD Form 214 changed to reflect an honorable discharge due to a service-connected disability.  He needs this upgrade of his discharge so he can gain eligibility for Montgomery GI Bill benefits.  He states he has records from military, civilian, and Department of Veterans Affairs (VA) medical centers to support his request.

3.  The applicant provides:

* DD Form 214
* photocopy of Department of Defense Identification Card and Michigan driver license
* VA and civilian medical 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.  On 30 September 1999, the applicant enlisted in the Regular Army (RA).  He did not complete initial entry training.

3.  His record does not contain his military medical documents or discharge packet.  However, his DD Form 214 shows he was discharged on 15 December 1999 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, due to a disability that existed prior to service as determined by a medical evaluation board.  He completed 2 months and 16 days of active service.  Item 24 (Character of Service) shows the entry "uncharacterized." 

4.  He provides numerous VA medical documents, some of which show a diagnosis of paranoid schizophrenia.  Further, he provides a letter from the VA indicating that agency has recorded his service as honorable for the period ending in December 1999.  

5.  He also provides New Center Community Mental Health Services documents, dated in 2004, showing he was diagnosed with paranoid schizophrenia.

6.  Army Regulation 635-40 establishes the Army 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  Chapter 5 provides for separation of an enlisted Soldier, on active duty for more than 30 days, for non-service aggravated EPTS conditions when the Soldier requests waiver of physical evaluation board (PEB) evaluation.

	b.  Paragraph 5-2 prescribes that a case must meet the conditions, set forth below for discharge under this chapter:

		(1) The Soldier is eligible for referral into the disability system.
		(2) The Soldier does not meet medical retention standards as determined by a medical evaluation board.

		(3) The disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty.

		(4) The Soldier is mentally competent.

		(5) Knowledge of information about his or her medical condition would not be harmful to the Soldier’s well being.

		(6) Further hospitalization or institutional care is not required.

		(7) After being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action.

		(8) The Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits.

7.  Army Regulation 635-40 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  For example, manifestation of symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  The version of the regulation in effect at the time of the applicant's discharge stated a separation would be described as an entry-level separation with service uncharacterized if processing was initiated while a Soldier was in entry-level status, except in the following circumstances: 

		(1)  When characterization under other than honorable conditions was authorized under the reason for separation and was warranted by the circumstances of the case. 

		(2)  The Secretary of the Army, on a case-by-case basis, determined that characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, convenience of the Government and Secretarial plenary authority.

	b.  For RA Soldiers, the regulation defined entry-level status as the first 180 days of continuous active duty.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
  
DISCUSSION AND CONCLUSIONS:

1.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-40, chapter 5, because of a disability that was EPTS.  Though he was not specific regarding the "service-connected" disability for which he claims he was discharged, it appears it was related due to an alleged nervous breakdown.
  
2.  The available record does not contain any evidence and the applicant has not provided any evidence that show errors in his separation processing.  The Board starts its consideration with a presumption of regularity that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that in the absence of such evidence, what the Army did was correct and that there is no basis for correcting his record to show he received anything other than an uncharacterized discharge due to a disability that EPTS. 

3.  The applicant contends he had a nervous breakdown while on active duty, and he served on active duty less than 3 months, and he is now diagnosed with paranoid schizophrenia.  It appears that in accordance with accepted medical principles he was properly diagnosed with an EPTS condition.

4.  When separation processing for an RA Soldier is initiated within the first 180 days of continuous active duty, service is usually not characterized.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  An uncharacterized discharge is neither positive nor negative.  It simply means the Soldier did not serve on active duty long enough to qualify for a specified characterization of service.  The available evidence does not show unusual circumstances of personal conduct and performance of military duty that would have warranted the Secretary of the Army's approval of an honorable characterization of service. 

5.  The ABCMR does not grant requests for changes to discharges solely for the purpose of making an applicant eligible for education or other benefits.  Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  He provides a letter from the VA indicating that agency has recorded his service as honorable for the period ending in December 1999.  For the purpose of determining an individual's eligibility for benefits, the VA, based on its own governing statutes and regulations, may determine a veteran's service was honorable.  This action by the VA is not evidence of an error in the character of service recorded in the individual's Army record.  

7.  In view of the foregoing, there is an insufficient basis for granting the relief he requests.

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)                                         AR20130007091



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ABCMR Record of Proceedings (cont)                                         AR20130007091



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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