BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019058 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to change her narrative reason for separation from "unsatisfactory performance" to "medical."  She also requests an upgrade of her character of service from an "under honorable conditions (general)" to "honorable."

2.  The applicant states, in effect, the Army failed to properly diagnose her with Type I Bipolar Disorder and Attention Deficit with Hyperactivity Disorder (ADHD). She was diagnosed with these medical conditions after she was discharged.  She received an honorable discharge from the Army National Guard and a general discharge for her service in the Regular Army.  She feels that her general discharge was the result of her being late and other minor occurrences which would not have occurred if the Army had properly diagnosed her with these conditions and stabilized her with appropriate medication.

3.  The applicant provides:

* Self-authored statement, dated 8 October 2013
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214
* Psychiatric assessment, dated 23 May 2008
* Psychiatric progress notes, dated 21 October 2008
* 7 pages of medical records/notes from Thorntree Psychiatric Associated, dated 15 March 2013
* Medical Record/Progress Note, dated 5 September 2013

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.  After having previous enlisted service, the applicant enlisted in the Regular Army on 1 November 1990 and served in military occupational specialty 77F (Petroleum Supply Specialist).

3.  She received 11 counseling statements from 5 January 1993 through 25 February 1995 showing she was counseled for:

* close to her maximum allowed body fat percentage and would be placed on the overweight program, if she exceeded the allowed percentage
* failure to maintain barracks cleanliness 
* disobeying a lawful order
* not recommended for promotion to private first class (PFC)/E-3
* writing bad checks
* driving a military vehicle without permission and without a military drivers license
* failure to follow instruction
* failing a room inspection and failing to prepare for a room inspection
* parking her car in an unauthorized area after being told not to do so
* leaving work early after being denied permission to do so
* failure to report to her appointed place of duty and failure to notify the chain of command that she would not be at her appointed place of duty
* lack of military bearing
* her appearance did not comply with regulatory standards and she failed to report to her noncommissioned officer (NCO) to inspect her appearance

4.  Her record contains a memorandum from the installation tax officer to her commanding officer, dated 22 February 1993.  It indicates she had been detailed to the tax office to assist Soldiers with their tax returns.  The installation tax officer stated he was returning her to her command for the following infractions:

* her performance and military bearing were substandard
* on 11 February 1993, failure to be at her appointed place of duty and    disobeying an order
* on 12 February 1993, she informed the installation tax officer she had been arrested for outstanding traffic warrants and after further probing it was determined she had also received a citation on the installation
* on 13 February 1993, failure to report for work at appointed time

* she had been out the night before and her car had broken down
* she was unable to call because she was not near a phone
* she smelled of alcohol, looked like she had just rolled out of bed, had a "club" stamp on her hand, and her duty performance was pitiful
* several field grade officers complained about her appearance, odor, and improper preparation of their tax returns

5.  Her record contains a memorandum from her current commander to the commander of her previous unit, dated 8 March 1993.  Her current commander stated she reported to his command wearing PFC rank.  However, they received her leave and earnings statement and noticed she was being paid as a private (PV2)/E-2.  He further stated her military record was missing and the applicant had stated she was not able to locate it when she cleared her previous unit.  

6.  On 16 March 1993, she accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Conduct (UCMJ) for:

* failing to report to duty on time
* disobeying an order from a commissioned officer concerning her personal appearance and its lack of compliance with Army regulation
* disobeying an order from an NCO not to leave work early

7.  On 19 March 1993, the appropriate authority imposed a bar to reenlistment.

8.  On 3 May 1993, her command received notification showing she had written three bad checks for $75.00 each.  

9.  Her record does not contain any evidence showing:

* she suffered from an illness or an injury that did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness) 
* she was issued a permanent profile that restricted her ability to perform the duties required of his former grade and military specialty
* she was diagnosed by medical authorities of a mental or physical disability 
* she suffered an injury or an illness that would have warranted her referral to the Physical Disability Evaluation System (PDES)

10.  On 5 May 1993, her immediate commander notified her of his intent to initiate elimination action against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The immediate commander stated she had exhibited actions and behavior that were not compatible with further military service.  These actions and behavior included repeated absences from her place of duty, failure to maintain standards, failure to obey orders from her superiors, and substandard duty performance.  Her commander also recommended she receive a general discharge.  She acknowledged receipt of this notification the same day.

11.  On 5 May 1993, her immediate commander initiated separation action against her under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  He restated the reasons listed in his notification letter and further stated she had shown no initiative to correct her shortcomings and had apathy towards conforming to the standards of discipline necessary for military service.  He recommended she receive a general discharge.

12.  Her records contain an undated letter she wrote on her own behalf, wherein she indicated she had received an NJP which included restriction and extra duty and was currently pending a chapter 13 discharge.  She requested the extra duty and restriction be remitted so she could look for a job, find a place to live, and attend some of the transition briefings so she would understand the benefits to which she may be entitled.

13.  On 6 May 1993, after meeting with counsel, the applicant acknowledged receipt of the separation memorandum, the basis for the contemplated action and its effects, the rights available to her, and the effect of any action taken by her to waive her rights.  She acknowledged she understood she could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to her.  She elected to submit a statement in her own behalf.  

14.  Her record contains a statement, dated 13 May 1993, wherein she requested an honorable vice a general discharge so she could use her educational benefits.

15.  On 26 May 1993, the separation authority approved her discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed issuance of a general discharge.

16.  On 9 June 1993, the applicant was discharged accordingly.  The DD Form 214 she received shows she was discharged in accordance with Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, with an under honorable conditions (general) characterization of service. 

17.  There is no indication she applied to the Army Discharge Review Board to request an upgrade of her characterization of service within the 15-year statute of limitations.

18.  She provided a psychiatric assessment, dated 23 May 2008, and psychiatric progress notes, dated 21 October 2008, showing a diagnosis of a bipolar disorder and listing her medications.

19.  She provided seven pages of medical records/notes from Thorntree Psychiatric Associated, dated 15 March 2013, showing she had been diagnosed with Bipolar Affective Disorder, mixed full remission on 13 October 2009 and Attention Deficit Disorder (ADD) without hyperactivity on 4 February 2010.  These documents also outline her treatment for these conditions.

20.  She provided a medical record/progress notes, dated 5 September 2013, listing the various medications she was taking for her medical conditions.

21.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 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.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 office, grade, rank, or rating.  It provides for medical evaluation boards (MEB) 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, chapter 3.  

	a.  If an MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	b.  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 office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	c.  Chapter 3 states 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of service reveals an extensive history of misconduct that included multiple negative counseling, NJP, a history of writing bad checks, and a penchant for disobeying the orders of NCOs and commissioned officers.  In addition, her duty performance was substandard.  She demonstrated little desire to perform her duties to standard.  Accordingly, her chain of command initiated separation action against her.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  Her discharge was appropriate because the quality of her service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Her repeated misconduct and failure to respond to counseling by members of her chain of command diminished the quality of her service.

3.  There is no evidence in her records to support a finding of physical unfitness.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating. 

4.  Disability compensation (a medical discharge) is not an automatic entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  Here, the applicant's active duty service was primarily interrupted by her continued misconduct and her failure to respond to counseling and rehabilitative efforts.

5.  The applicant failed to show through the evidence submitted or the evidence of record that she should have been processed for separation due to physical disability.  Post-service medical diagnoses rendered nearly 15 years after discharge is insufficient to show she should have been processed through the Army medical evaluation system at the time of her service. 

6.  In view of the foregoing, in this case, there is insufficient evidence 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)                                         AR20130019058



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019058



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1