IN THE CASE OF:  	  

		BOARD DATE:  15 January 2015	  

		DOCKET NUMBER:  AR20140009573 


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, in effect, correction of the character of his service from uncharacterized to a medical discharge.

2.  The applicant states:

   a.  There is medical evidence of a psychological disability that should have resulted in a medical discharge.  Prior to his discharge he was not afforded a psychological evaluation.

   b.  Initially, he volunteered to serve in the Army during a very crucial developmental stage in his life at 23 years of age with great spirit, pride, and dedication.  He received battalion awards for physical performance and fitness and then he instantaneously experienced a "psychotic break" in his mental state which led to some uncontrollable behavior.  Nothing else could explain that type of abrupt behavior except a type of change in his mental state.  He began to behave contrary to what he so inspirationally wanted in the Army to serve as a ranger.  He solemnly believes that his military experience and the stressors thereof had exacerbated a subtle, preexisting mental health condition causing a "psychotic break" in his mental state.

   c.  He cannot reverse the development of his debilitating and deteriorating state of mind, so he requests a review of his discharge in its entirety which will enable him to a better overall quality of life.

   d.  He is presently applying for compensation benefits.  His simultaneous filings both to the Army Review Boards Agency (ARBA) and National Personnel Records Center (NPRC) has disrupted his claim process with the Department of Veterans Affairs (VA) because the Army has not released the military records necessary to allow the VA's evaluation in order to process any claim.  The NPRC advised him to wait at least 30 days after receiving final documentation, to include all completed Board actions, before resubmitting any request for information to the NPRC.  It is now November and has not heard from them.  It has been strongly suggested by the VA that he submit the requested information (certified DD Form 214 (Certificate of Release or Discharge from Active Duty) and treatment records from the service department) within 30 days or they will make a decision on his claim which may not be fair.

   e.  He requests the Board having taken into consideration his subsequent, various, chronic, severe illnesses, release the necessary documentation to the VA for processing because his overall quality of life depends on it.   

3.  The applicant provides copies of the following:

* three Adult Initial Assessment
* Pathology Report
* Neurology Muscular Dystrophy and Neuropathy Institute report
* three letters from the Social Security Administration (SSA), NPRC, and VA (page 2)
* UCLA Health medical report
* completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records contain Standard Form (SF) 93 (Report of Medical History) and SF 98 (Report of Medical Examination) which show on 30 September 1996 he underwent an examination for the purpose of enlisting in the Marine Corps.  He indicated on the SF 93 his present health was "good" and he was found qualified for enlistment.

3.  He enlisted in the Louisiana Army National Guard (LAARNG) on 26 June 1997.  He was ordered to and entered initial active duty for training (ADT) on 17 September 1997.  He did not complete advanced individual training (AIT) and was not awarded a military occupational specialty (MOS).

4.  On 26 February 1998, the applicant's company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 7-17b, for Fraudulent Entry.  The company commander stated that a record check conducted by Security Operations revealed that on 16 October 1996 the applicant was charged with petit larceny.  On 18 April 1997, the applicant was charged with failing to appear.  During the processing of the applicant's entry to active duty, he failed to list those offenses on his SF 86 (Security Clearance Questionnaire).  By not revealing that information constituted fraudulent entry and warranted the applicant's immediate separation from the Army.  He advised the applicant of his rights.

5.  On 27 February 1998, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action, its effects, and the rights available to him.  He also acknowledged he could receive a general or under other than honorable conditions discharge and the results of the issuance either discharge.  He waived his rights and elected to not submit a statement in his own behalf. 

6.  On 3 March 1998, the applicant's battalion commander recommended approval of the applicant's discharge with the issuance of an uncharacterized discharge.

7.  On 9 March 1998, the separation authority approved the applicant’s discharge and directed the issuance of an uncharacterized discharge and his return to the State ARNG for discharge from the ARNG.

8.  Order Number 85-176, dated 26 March 1998, released him from ADT and returned him to the ARNG effective the same date.

9.  Accordingly, he was separated from active duty in pay grade E-1 on 26 March 1998 and was transferred to the LAARNG.  He was credited with completing 6 months and 10 days of active service.  His service was uncharacterized.
  
10.  He was discharged from the LAARNG on 15 April 1998, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26g, for Fraudulent Entry.  He was credited with completing 1 year, 6 months, and 12 day of net service.  His service was uncharacterized.

11.  He provided copies of the following:

   a.  An Adult Initial Assessment, dated 4 April 2008, which shows he was diagnosed with a schizoaffective disorder; bi-polar and was recommended for a psychiatric evaluation and he would be receiving medical support and therapy.

   b.  An Adult Initial Assessment, dated 29 December 2011, which shows he had been diagnosed as being schizophrenic and was referred for further evaluation.

   c.  A Pathology Report, dated 12 April 2013, which shows he was diagnosed with sweat gland nerve fiber density.

   d.  A Neurology Muscular Dystrophy and Neuropathy Institute report, dated 11 July 2013, which shows he underwent a study for sensory motor neuropathy.

   e.  An Adult Initial Assessment, dated 10 February 2014, which shows he was diagnosed with a panic disorder and was referred for a medical evaluation.
   
   f.  A letter from the SSA, dated 27 May 2014, wherein he was advised, in response to his request for information from his record, that his onset date for disability was 1 January 2006.

   g.  A letter from NPRC, dated 22 September 2014, wherein he was advised that his Army personnel record had been loaned to the ARBA and to wait at least 30 days after receiving final documentation, to include all completed Board actions, before resubmitting any request for information to the NPRC.  

   h.  A letter (page 2) from the VA wherein he was advised to send any information or evidence to them as soon as he could.  If they did not hear from him, they could make a decision of his claim after 30 days.

   i.  An UCLA Health medical report, dated 15 October 2014, which shows he received treatment in the Pain Management Clinic and listed his following health problems:
* Tuberculosis lung – latent
* Hypothyroidism
* Hepatitis C
* Schizophrenia
* Depression with history of hospitalization
* Onychomycosis
* Neutropenia
* Small fiber neuropathy
* Chronic inflammatory demyelinating neuropathy
* Chronic pain
* Neuropathic pain
* Thrombocytopenia
* History of hepatitis C
* Health care maintenance

   j.  A letter from the VA, dated 28 October 2014, wherein he was advised that they were working on his claim and additional evidence was needed from him, i.e., his original or certified copy of his DD Form 214 and other separation papers for all periods of service.

12.  There is no evidence he submitted a request to the Army Discharge Review Board within its 15-year statute of limitations for a change of characterization of his service.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 3-9a – A separation would be described as entry-level with service uncharacterized if processing was initiated while a Soldier was in entry-level status.  Entry-level status for ARNG Soldier terminates 180 days after beginning Phase II of advanced individual training.

   b.  Paragraph 7-17b – a member who concealed his or her conviction by civil court of a felonious offense normally would not be considered for retention.  If the fraudulent entry was verified, the separation authority would take action to direct discharge and issue an honorable or general discharge certificate.  
   
   
   
   c.  Paragraph 7-23 - a Soldier discharged under the provisions of this chapter would be  furnished DD Form 256A or assigned a character of service of under other than honorable conditions.  If in entry-level status, service would be described as uncharacterized as appropriate.

14.  National Guard Regulation 600-200, in effect at the time, governed procedures for enlisted personnel of the ARNG.  Paragraph 8-26 covered reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG.  Paragraph    8-26g pertained to fraudulent entry.  That service would be described as uncharacterized if separation processing was initiated while a Soldier in an entry level status (not awarded and serving in an MOS) when separated.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the LAARNG on 25 June 1997.  He entered ADT on 17 September 1997.  Upon receipt of information that the applicant had been charged with petit larceny and failing to appear the company commander initiated action to discharge the applicant for fraudulent entry based on his concealment of the offenses.  The separation authority approved his discharge and directed his discharge from the LAARNG.  Accordingly, he was separated from active duty on 26 March 1998 and the LAARNG on 15 April 1998.

2.  The documentation submitted with his application was carefully considered; however, the documentation shows his active medical conditions show they were assessed beginning in 2011, approximately 13 years after his 1998 separations.  There is no evidence to support his contentions or show he suffered a disabling condition(s) at the time that would have supported his processing for a medical discharge through medical channels.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to a medical discharge.

4.  Without evidence to the contrary, his administrative separations from the Regular Army and LAARNG were accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  

5.  By regulation, a Soldier in an entry level status would have their service uncharacterized.  Meaning he had not performed duties for his character of service to be rated as honorable or otherwise.  It was and still is not meant to be a negative reflect of a Soldier's military service.  He did not complete AIT for award of an MOS and perform duties in that MOS.  Therefore, he is not entitled to a change in the characterization of his service from uncharacterized.

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)                                         AR20140009573





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ABCMR Record of Proceedings (cont)                                         AR20140009573



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