IN THE CASE OF:	   

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140018231 


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 honorable discharge (unsuitability, apathy, defective attitude, or inability to expend efforts constructively) to a medical discharge
* removal of the narrative reason for separation and corresponding codes from his DD Form 214 (Certificate of Release or Discharge from Active Duty) 

2.  The applicant states:

* he was found unfit to perform and continue his military service because of physical disability due to three hernia injuries
* his multiple injuries interfered with his ability to perform his job requirements
* the derogatory narrative reason for separation and codes on his DD Form 214 misconstrues the real reason for his separation 
* he was instead chaptered out for motivational problems and/or a defective attitude when the real reason should have been his chronic injuries
* he was discharged before his umbilical hernia was operated on or treated; he was left with painful service injuries to handle on his own
* he is still in discomfort from multiple injuries; he was not given the opportunity to be evaluated or referred to a medical board
* he was given a separation examination before his second injury; the diagnosis of umbilical hernia is not found on his separation examination
* he had a depressed mood that was changed to a normal mood on the separation examination and the reason for his discharge was not recorded on the separation examination
* he requested a less strenuous job but instead he was ordered to work in pain given the separation
* there is no medical reason for separation on his DD Form 214; the doctor stated he was unfit but the reason was changed to unsuitability

3.  The applicant provides:

* Congressional correspondence
* Honorable Discharge Certificate
* DD Form 214
* Selected service treatment records
* Dental records
* Immunization records
* Enlistment eye examination
* Post-service VA medical records and rating decisions
* Statement of service-connection to the Department of Veterans Affairs (VA)
* Character reference statements and statements of support
* Certificate of completion, dated 2 August 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.  The applicant's records show he enlisted in the Regular Army on 22 May 1979 Section C of his enlistment contract stated "My enlistment is more than an employment contract.  As a member of the Armed Forces of the United States, I will be required to obey all lawful orders and perform all assigned duties.  If my behavior fails to meet acceptable military standards, I may be discharged and given a certificate for less than honorable service." 
3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13B (Field Artillery/Cannon Crewmember).  He was reassigned to the 3rd Squadron, 3rd Armored Cavalry Regiment, Fort Bliss, TX.  

4.  His records show he was frequently counseled by members of his chain of command for various infractions, including: 

* Multiple instances of being out of uniform
* Multiple instances of failing to report
* Consistently being late to formation
* Apathy
* Negative attitude
* Insubordination

5.  On 27 October 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty and wrongfully possessing marijuana.  His punishment consisted of a reduction to private/E-1, a forfeiture of pay, and extra duty. 

6.  On 11 December 1980, his commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct.  He was counseled and furnished with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar approval authority ultimately approved the bar. 

7.  On 6 August 1981, his chain of command rendered statements recommending his immediate elimination from the Army: 

	a.  The applicant's first line supervisor stated his job performance is one of the poorest he had seen.  He could perform within the limits of his profile but elects to laugh at other personnel in the section who are working.  His attitude, appearance, and sense of responsibility are a disgrace to the unit and the Army.  His elimination is strongly recommended.  

	b.  One section sergeant stated he met the applicant in August 1980 and he was always trying him to see what he could get away with.  He was hanging around the wrong type of people and in order to get any work out of him, one had to constantly supervise him or else he would not do anything.  He was always coming up with excuses and he was caught lying about his whereabouts a couple of times.  He has gone from bad to worst and had not changed his attitude.  

	c.  The platoon sergeant stated he had observed the applicant and how he soldiered.  He had not done anything at all to improve himself.  He and other noncommissioned officers spent long times trying to help him but nothing seemed to work.  His attitude toward his superiors and his job was low.  His appearance and personal hygiene were very poor.  He should not be retained in the Army.  

	d.  The gunnery sergeant stated that he had been in contact with the applicant on a daily basis and in the past four months his lack of motivation had been a problem.  His duty performance was lacking and his ability to learn was very poor.  He did not try to show any kind of improvement in basic soldiering, job performance, or self-improvement.  He needed and received constant supervisions from his chain of command but still he did not improve.  He had the correct span of time to improve but he did not make the effort.  He felt the unit and the Army would not gain anything by retaining him. 

8.  On 8 May 2981, he underwent a mental status evaluation.  He was found mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met retention standards of chapter 3 of Army Regulation        40-501 (Standards of Medical Fitness).  The Report of Mental Status Evaluation shows no mental illness and the applicant was psychiatrically cleared for administrative action by his chain of command. 

9.  On 8 May 1981, he underwent a physical separation for a chapter 13.  The examining doctor indicated the applicant had a hernia repair but there were no disqualifying mental or physical defects to warrant disposition through medical channels.  The medical examiner found him medically qualified for separation and assigned him a PULHES of "1-1-1-1-2-1." 

10.  On 23 July 1981, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unsuitability (apathy).  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  

11.  On 24 July 1981, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He requested consideration of his case by a board of officers and a personal appearance before a board of officers.  He further indicated he would submit a statement at a later time.  He acknowledged that:
* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that in the event of the issuance of an discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life

12.  On 24 July 1981, the immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 due to unsuitability. Specifically, the immediate commander cited the applicant's apathy (lack of appropriate interest), defective attitude, and inability to expend efforts constructively.  He recommended a waiver of the rehabilitative transfer because he felt further duty would create a serious disciplinary problem.  The applicant was obviously resisting all attempts to be rehabilitated and rehabilitation would not have produced the quality Soldier acceptable.  

13.  On 6 August 1981, the immediate commander recommended approval of the discharge action and stated: 

* the applicant had never shown the ability to perform satisfactorily as a Soldier; his appearance, attitude, and duty performance were poor
* all attempts to improve his duty performance failed and provided no results
* he received NJP and was barred from reenlistment; he was even considered for an expeditious discharge program but he refused
* the applicant went on emergency leave from 26 March to 15 April 1981 preventing completion of the discharge action
* upon his return, he was scheduled for a separation physical and took one in May 1981
* he had been hospitalized and on convalescent leave for a hernia operation 20 January to 17 February 1981 
* he was again hospitalized from 4 to 30 June 1981 which further delayed his separation 
* his current profile prevents him from marching standing for long periods, strenuous physical activity, and handling heavy material; it expires in September 1981
* he had never been a productive member of the unit and his separation was in the best interest of the Army and the unit 

14.  On 10 August 1981, his battalion commander also recommended approval of the discharge action.  He stated:

* the applicant's conduct had been totally unsatisfactory and his presence was disruptive to discipline and mission accomplishment
* his attitude and lack of bearing were creating a morale problem for the unit and those he works with; his discharge was the best solution for the good of the unit and the Army

15.  On 1 October 1981, a board of officers convened with the applicant and his counsel present to consider if the applicant should be eliminated from the Army.  The board of officers found the applicant unsuitable for service in the Army and recommended his discharge with an honorable characterization of service.  

16.  On 14 October 1981, the convening/separation authority approved the board of officers' findings and recommendation and ordered the applicant discharged under the provisions of chapter 13 of Army Regulation 635-200 with an honorable characterization of service.   Accordingly, the applicant was discharge don 23 October 1981. 

17.  His DD Form 214 shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an honorable discharge.  He completed 2 years, 2 months, and 14 days of creditable active military service.  His DD Form 214 also shows in:

* Item 26 (Separation Code) - JMJ
* Item 27 (Reenlistment (RE) Code) - 3
* Item 28 (Narrative Reason for Separation) - Unsuitability, Apathy, Defective Attitude or Inability to Expend Efforts Constructively 

18.  In September 1984, he underwent an enlistment physical at the St. Louis, MO, Military Entrance Processing Station (MEPS) for the purpose of enlistment in the Missouri Army National Guard (MOARNG).  He was found medically acceptable and assigned a PULHES of "1-1-1-1-1-1." 

19.  He enlisted in the MOARNG on 19 September 1984.  He was honorably separated from the ARNG on 4 October 1985

20.  On 22 October 1986, he again underwent an enlistment physical at the St. Louis MEPS for the purpose of enlistment in the MOARNG.  He was again found medically acceptable and assigned a PULHES of "1-1-1-1-1-1." 

21.  He enlisted in the MOARNG on 24 October 1986.  He was discharged on 1 October 1987 as an unsatisfactory participant after having over 10 unexcused absences.  

22.  His medical records are not available for review with this case.  However he provides selected service medical records that show he was seen for routine sick calls and underwent surgery for a hernia.  He was issued a temporary physical profile on 16 January 1981 (expiring on 19 February 1981) for left inguinal hernia. He was also issued a temporary profile on or about 18 February 1981 (expiring on 9 March 1981) in relation to his inguinal hernia.  He was also issued a third temporary profile on 5 May 1981 (expiring on 5 June 1981) for the same condition.   

23.  He also provides: 

	a.  Congressional correspondence with a Member of Congress requesting assistance with his application to this Board. 

	b.  Honorable Discharge Certificate, dated 23 October 1981. 

	c.  VA letter, dated 12 November 2009, together with his post-service VA medical records and correspondence related to his service-connection appeal. 

	d.  Certificate of completion, dated 2 August 2013, showing completion of a computer skill training program. 

	e.  Enlistment dental and immunization records and enlistment eye examination.

	f.  Multiple character reference statements and statements of support, dated in 2009 and/or 2010, in relation to his VA claim for service-connection. 
23.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

24.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general under honorable conditions or an honorable discharge was considered appropriate.
25.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JHJ" is the correct code to be assigned to Soldiers separating under chapter 13 of Army Regulation 635-200.

26.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency is responsible for administering the Army Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Separation, or Retirement).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages: the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

27.  Army Regulation 635-40 establishes the Army 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 states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

28.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3–2.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties or may compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. 

29.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his separation: 

	a.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him for unsuitability.

	b.  The available evidence shows his duty performance was tarnished by one instance of NJP, which included wrongful possession of illegal drugs, a bar to reenlistment, and an extensive history of negative counseling.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  He was afforded all his rights and was considered by a board of officers that recommended his elimination from the Army by reason of unsuitability, albeit with an honorable discharge.  There is no error or injustice in his elimination from the service. 

2.  With respect to the narrative reason for separation: 

	a.  There is no evidence in the available records and he did not provide sufficient evidence that shows at the time of his separation from active duty he was diagnosed with any physical or behavioral health condition that failed retention standards or was unfitting or would have warranted his entry into the PDES.  Medical separation is based on existence of a condition that did not meet retention standards.  

	b.  In connection with his separation under chapter 13, he underwent a mental status evaluation that showed he met retention standards of chapter 3 of Army Regulation 40-501.  The Report of Mental Status Evaluation shows no mental illness and the applicant was psychiatrically cleared for administrative action by his chain of command.   He also underwent a physical examination that noted his hernia repair but found no disqualifying mental or physical defects that warranted his disposition through medical channels.  The medical examiner found him medically qualified for separation and assigned him a PULHES of "1-1-1-1-2-1." 

	c.  His Regular Army service was not interrupted by any medical or behavioral health condition.  It was interrupted by his apathy that led to the initiation of separation action against him.  In fact, following his discharge from the Regular Army in 1981, he twice enlisted in the MOARNG in 1984 and in 1986 and in each occasion, he was found medically qualified for service.  

	d.  A disability separation requires the presence of impairment (illness or injury) that was incurred while entitled to basic pay and renders a Soldier unable to perform the duties required of his graded and/or specialty.  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 or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.  This is not the case here.  

	e.  In view of the foregoing evidence, he is not entitled to a medical separation.

3.  With respect to the narrative reason for separation: 

	a.  The evidence of record confirms the narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsuitability (apathy, lack of appropriate interest, defective attitude and inability to expend effort constructively).  Absent the substandard performance and apathy, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his unsuitability.  

	b.  The only valid narrative reason for separation permitted under this paragraph is "Unsuitability (apathy, lack of appropriate interest, defective attitude and inability to expend effort constructively)."  The appropriate separation code associated with this type of discharge is "JHJ" and the appropriate RE code associated with this type of discharge and SPD code is "RE-3."  

4.  The applicant was discharged under the appropriate separation authority, received the appropriate character of service, and he was assigned the appropriate separation code, RE code, and narrative reason for separation.  In view of the foregoing, he is not entitled to 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)                                         AR20140018231



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ABCMR Record of Proceedings (cont)                                         AR20140018231



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