IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150007379 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 his general discharge (GD) be upgraded to an honorable discharge (HD) and correction of his record to show he was discharged for medical reasons. 2. The applicant states he was emotionally distraught, attempted suicide, and was not given adequate counselling or options for help. He was not treated fairly the last couple of weeks on active duty. He was told his GD would be automatically upgraded in 6 months if he stayed out of trouble. Since discharge he has been diagnosed as suffering from chronic fatigue, chronic depression, fibromyalgia, and a manic depressive disorder by both civilian and Department of Veterans Affairs (VA) doctors. Despite his multiple medical problems, he has stayed out of trouble since discharge. He now serves as a member of the honor guard and chaplain with veteran's groups, has been married for 29 years and has two children, has been gainfully employed as best as he could, and is an ordained minister. 3. The applicant provides no additional supporting documentation. 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 6 January 1976, completed training, and was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice on – * 23 July 1976, for being absent without leave (AWOL) from 19 - 21 July 1976 * 24 January 1977, for failing to go at the timed prescribed to his appointed place of duty 4. On 12 January 1977 was treated for a suicide gesture. The treatment form states the applicant wants out of Army and made a suicide gesture. The medical evidence shows he had 6 – 8 minor abrasive sites on his left wrist. He was referred to psychiatry for evaluation. The available records do not include the findings of that referral. 5. A 13 January 1977 Standard Form 93 (Report of Medical History) records his complaint of depression due to family problems and his attempted suicide. 6. A 13 January 1977 Standard Form 88 (Report of Medial Examination) found no abnormalities other than reduced distant vision. He was cleared for separation. 7. The available records do not include any of the separation documentation except the above medical records and a statement giving the applicant an explanation of his reason for separation. 8. On 23 February 1977, the applicant was discharged under the Expeditious Discharge Program with a GD for failure to maintain acceptable standards for retention. His DD Form 214 shows 1 year, 1 month, and 15 days of net active service this period with 3 days of lost time. 9. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statute of limitations. 10. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides the policy and sets forth the procedure for administrative separation of enlisted personnel. a. Chapter 5, as then in effect, provided for the Expeditious Discharge Program (EDP). This program provided that an individual who had completed at least 6 months but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he or she could not or would not meet acceptable standards could be separated. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. The EDP did not apply to Reserve or Army National Guard personnel on any type of active duty training. b. An honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. c. A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and set 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 or her office, grade, rank, or rating. Separation or retirement by reason of disability requires processing through the PDES. The regulation state 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, rank, or rating. Further, 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 the can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service 12. Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating due to that physical disability. 13. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. DISCUSSION AND CONCLUSIONS: 1. There is not now nor has there ever been any law or regulation that allows for an automatic upgrade of a service member's characterization of service. Each case is considered on its own merits when an applicant requests an upgrade of his or her discharge. 2. The available evidence does not support a conclusion that his reported depression and suicide attempt formed a basis for processing through the PDES, that he should have been discharged for physical disability, that any mental health issued were the cause of his misconduct, or that he was unfit for duty due to a physical disability. 3. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The type and character of the discharge is commensurate with his overall record. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20150007379 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007379 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1