IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140013891 


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 DD Form 214 (Report of Separation from Active Duty) for the period ending 8 September 1975 by changing the authority and reason for his honorable discharge.

2.  The applicant states paragraph 5-37 does not appear in Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant claims he should have been discharged in accordance with paragraph 5-17 because that was the reason he left the service.  He further states he received medical attention at the San Juan, PR, Department of Veterans Affairs (VA) Hospital.

3.  The applicant provides:

* DD Form 214
* a self-authored statement
* Clinical Record – Consultation Sheet

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 23 July 1973.  He completed training and he was awarded military occupational specialty 95C (Correctional Specialist).

3.  On 21 August 1975, the commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-37 (Failure to Maintain Acceptable Standards for Retention - Expeditious Discharge Program (EDP)).  The commander advised the applicant of his rights and the separation procedures involved.  The reasons for his proposed action were:

   a.  The applicant's failure to report to the unit orderly room at the specified time as ordered by the first sergeant which resulted in a verbal reprimand.

   b.  During a counseling session on 15 August 1975, the applicant verbally expressed his lack of motivation and desire for continued service in the U.S. Army.

   c.  The constant poor attitude he exhibited since his assignment to the unit and his preoccupation with separation from service indicated a serious lack of self-discipline which is inconsistent with the high standards of the unit, the corps, and the Army.

4.  The applicant acknowledged he was notified of the proposed discharge action and he voluntarily consented to the discharge.  He did not submit statements in his own behalf.  He further acknowledged that he could, prior to the date the discharge authority approved his request, withdraw his voluntary consent to the discharge.

5.  The applicant's commander recommended he be discharged from the Army under the provisions of paragraph 5-37 of Army Regulation 635-200 due to his poor attitude and lack of self-discipline.  He recommended that the applicant be furnished an Honorable Discharge Certificate.  The applicant had been advised of the action contemplated and he acknowledged receipt.  The applicant consented to separation under the EDP.

6.  On 29 August 1975, the appropriate authority approved his separation under the provisions of paragraph 5-37 of Army Regulation 635-200 for failing to meet acceptable standards for continued military service.  The issuance of an Honorable Discharge Certificate was directed.

7.  On 8 September 1975, he was discharged.  He completed 2 years, 1 month, and 26 days of total active service.  He was assigned the Separation Program Designator (SPD) code "KMN."  Army Regulation 635-5-1 (SPD Codes), then in effect, specified the narrative reason for SPD code "KMN" as "Failure to Maintain Acceptable Standards for Retention EDP."  The authority under this SPD code was paragraph 5-37, Army Regulation 635-200.

8.  The applicant provides a Clinical Record – Consultation Sheet dated 7 April 1975 that shows he sought treatment for headaches and difficulty sleeping.  He also provides a self-authored statement in which he states:

   a.  While serving as a corrections officer in Okinawa, Japan in 1974, the applicant and a fellow noncommissioned officer were taken hostage.  After the situation was under control, he was given a sedative and sent back to the barracks.  He began to have nightmares and started to feel unrest.

   b.  After the uprising, he continued to have feelings that he was going to be stabbed or taken hostage again; however, he kept on working with these feelings and the emotional pressure continued to build which resulted in headaches.

   c.  The prisoners were cold-blooded killers, rapists, and thieves.  The applicant had to maintain control of his personality but it got to the point that he couldn't sleep at night and the nightmares and threatening feelings got the best of him and he was sent to Fort Jackson, SC.

   d.  He continued to feel the same and his commanding officer (CO) asked him to see the stockade psychiatrist; however, he refused and informed the CO that he could deal with the feelings in time.  He claims he tried to get help from the clinic but received none.  

   e.  Eventually his condition worsened to the point he considered taking his own life.  He informed his CO that he didn't know what was happening to him and he eventually received an early discharge.  After his discharge, he was sent to the psychiatric unit of a VA hospital for treatment of his anxiety.
   
   f.  He is proud to have served his country as a military policeman and he conducted himself appropriately.  Throughout his service he never received nonjudicial punishment and no matter how he felt, he never missed a day of work.  After a long period of treatment in the VA hospital he has learned to understand his condition and with medication, he is able to control it.
9.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 (EDP) provided for the discharge of enlisted personnel who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either an honorable or a general discharge.  

10.  Army Regulation 635-200, paragraph 5-17, specifically provides that Soldiers may be separated on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to - Chronic Airsickness; Chronic Seasickness; Enuresis, Sleepwalking; Dyslexia; Severe Nightmares; Claustrophobia; and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties are significantly impaired.

11.  Army Regulation 635-200, paragraph 5-17, further indicates that when a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation.

12.  Army Regulation 635-5 (Separations Document), at the time, established the standardized policy for preparing and distributing the DD Form 214.  It stated, in pertinent part, that item 9c would contain the narrative reason for separation, as shown in Army Regulation 635-5-1 based on the regulatory authority.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his DD Form 214 for the period ending         8 September 1975 by changing the authority and reason for his honorable discharge has been carefully examined.

2.  The applicant's contentions have been considered.  However, there is insufficient evidence in the available record, nor has he submitted sufficient evidence, showing the narrative reason for separation currently shown on his DD Form 214 for the period ending 8 September 1975 is incorrect or that it contradicts the evidence of record.

3.  Army Regulation 635-200, paragraph 5-17, specifically provides that Soldiers may be separated under this provision on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  However, there is insufficient evidence which shows he was medically unfit for retention at the time of his discharge.  

4.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel for continued military service.  Accordingly, his immediate commander initiated separation action against him in accordance with the EDP.  He was advised of his rights and voluntarily consented to the discharge action.

5.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the authority and reason for separation were appropriate considering all the facts of the case.  Based on the applicable regulations and the available evidence of record, the authority and reason shown on his DD Form 214 for the period ending 8 September 1975 is correct as currently reflected.

6.  In view of the foregoing, there is insufficient evidence to support 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)                                         AR20140013891





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ABCMR Record of Proceedings (cont)                                         AR20140013891



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