RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 December 2003    
	DOCKET NUMBER:   AR2003086907

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller 		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Eloise C. Prendergast		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his honorable discharge be changed to a medical discharge.  He also requests that his military records be corrected to reflect his promotion to staff sergeant/E-6. 

2.  The applicant states, in effect, that he would have been promoted to staff sergeant and retired if it weren't for his mental illness.  He contends that he did not receive proper separation guidance and that he was intimidated and led to believe that he was going to be "chaptered out" and issued a reentry code of 4.  He also contends that he was unable to perform his duties mentally and physically.  

3.  The applicant provides a letter of explanation, dated 23 October 2002; a Department of Veteran Affairs (DVA) Rating Decision, dated 15 August 2002; service personnel records; Noncommissioned Officer (NCO) Evaluation Reports; and numerous copies of his service medical records and DVA medical records.      
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  The Disabled American Veterans, as counsel for the applicant, requests that the Board evaluate all pertinent evidence to include the applicant's service medical records and the DVA case file.  

2.  Counsel states that after careful consideration of all procurable assembled data, if reasonable doubt should arise, counsel strongly requested that any and all doubt be in favor of the applicant.   

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
13 August 1999.  The application submitted in this case is dated 13 March 2003.  
2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  Having prior active and inactive service, the applicant enlisted in the U.S. Army Reserve and was ordered to active duty in the Active Guard Reserve (AGR) Program on 14 August 1996 for a period for 3 years.  His military occupational specialty was 79R (recruiter).

4.  On 14 July 1998, the applicant was counseled for failure to perform duties (did not want to work in his primary military occupational specialty (recruiting) any longer). 

5.  On 15 July 1998, the applicant underwent a mental status evaluation.  Competent medical authority determined that the applicant had the mental capacity to understand and participate in the proceedings, that he was mentally responsible, that he met the retention requirements of chapter 3, Army Regulation 40-501, and that he needed further examination by the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  The applicant was evaluated by the ADAPCP on 15 July 1998 and was diagnosed as alcohol dependent.  Outpatient treatment was recommended.     

6.  On 15 August 1998, the applicant underwent a physical examination and was found qualified for separation with a physical profile of 111111. 

7.  On 26 August 1998, the applicant was diagnosed by the DVA with major depression, alcohol abuse.

8.  U.S. Total Army Personnel Command Orders 293-44, dated 20 October 1998, show the applicant was conditionally promoted to staff sergeant with an effective date of 1 November 1998.

9.  On 3 November 1998, the applicant requested declination of promotion due to financial hardship.  His request was approved on 9 November 1998.

10.  On 19 November 1998, a flag was initiated against the applicant for Army Physical Fitness Test failure.

11.  The applicant received a Relief for Cause NCO Evaluation Report for the period September 1998 through November 1998.  On 30 November 1998, the applicant was suspended from recruiting duty. 
 
12.  On 12 February 1999, the Brigade Commander, U.S. Army 5th Recruiting Brigade, directed the relief of the applicant as an unsuitable recruiter due to financial hardship. 

13.  U.S. Total Army Personnel Command Orders 112-5, dated 22 April 1999, revoked the orders for the applicant's promotion to staff sergeant.  There is no evidence in the applicant's service personnel records which shows he was promoted to staff sergeant following this revocation or prior to his discharge. 

14.  On 14 May 1999, the applicant requested release from active duty in the AGR Program with an effective date of 13 August 1999.  The approval authority approved his request on 20 May 1999.  

15.  The applicant's NCO Evaluation Report covering the period January 1999 through July 1999 states that he was rated "Fully Capable" in Part V (Overall Performance and Potential). 

16.  Accordingly, the applicant was honorably discharged in the rank of sergeant/E-5 on 13 August 1999 under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service.

17.  The applicant provided DVA documentation which shows service connection was granted for tinnitus (right ear) 10 percent; major depressive disorder 70 percent, recurrent strain of left shoulder 20 percent; and sinusitis 10 percent. 

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  

19.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

20.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

21.  Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an 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 soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that 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.  When a soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement indicates that a soldier is fit.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record, and the applicant has provided no evidence, which shows that he was diagnosed with a mental illness prior to his discharge on 13 August 1999.  

2.  The applicant has provided no evidence to support his contention that he was unable to perform his duties mentally and physically.  The mental status evaluation conducted prior to the applicant's discharge shows that he was mentally responsible.  The physical examination conducted prior to the applicant's discharge shows his physical profile factors as 111111.  There is no medical evidence of record that shows the applicant incurred any mental or medical condition while entitled to receive basic pay which was so severe as to render him medically unfit for retention on active duty.  The applicant's 1999 NCO Evaluation Report shows he was able to successfully perform his duties until he was released from active duty.  Also, the applicant was relieved from recruiting duties due to financial hardship.  Therefore, there is no basis for granting the applicant's request for a medical discharge. 
 
3.  Evidence of record shows the applicant requested declination of his promotion to staff sergeant on 3 November 1998.  Therefore, there is no basis for amending his records to reflect his rank as staff sergeant.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 13 August 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 August 2002.  However, the applicant did not file within the 3-year statute of limitations and has 

not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

MDM___  RJW____  ECP_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		__Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR2003086907	
SUFFIX		
RECON		
DATE BOARDED	20031209	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19990813	
DISCHARGE AUTHORITY	AR 635-200 chapter 4	
DISCHARGE REASON	Completion of required active service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.0000	
2.		
3.		
4.		
5.		
6.