BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003668 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003668 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003668 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 uncharacterized discharge be changed to an honorable or a medical discharge. 2. The applicant states the characterization of his 1995 discharge does not allow him to submit disability claims. He sustained an injury during annual training that prompted his medical discharge. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 3 October 1995. 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 Pennsylvania Army National Guard (PAARNG) on 29 January 1987. He was discharged on 24 July 1987. His service was uncharacterized. He was credited with completing 5 months and 26 days of net service. 3. He enlisted in the Washington ARNG (WAARNG). He entered active duty for training (ADT) on 23 March 1995. He did not complete advanced individual training. 4. He received counseling on/for: * 11 August 1995 – not being at his appointed place of duty * 12 August 1995 – destruction of government property * 14 August 1995 – malingering * 2 September 1995 – recommendation for discharge under the provisions of chapter 11, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) 5. In August 1995, a bar to reenlistment was initiated against him because he could not adapt to military life and he had demonstrated no potential for future service (repeated counseling statements and other indicators). 6. On 5 September 1995, the applicant's unit commander referred the applicant to the Community Mental Health Service (CMHS) based on the applicant's depressed mood, irritability and homesickness. A psychiatric clinical nurse prepared a written assessment stating the applicant’s diagnostic impression was adjustment disorder with mixed disturbance of emotions and conduct with a history of alcohol dependency. The mental health provider recommended the applicant be removed from training immediately and separation action be initiated to discharge him from the service. 7. The applicant's unit commander notified the applicant of his intent to initiate action to release the applicant from active duty under the provisions of AR 635-200, chapter 11, per the recommendation of the mental health provider. He advised the applicant that he would receive an uncharacterized discharge and of his rights. 8. After consulting with counsel, the applicant acknowledged receipt of the separation notification. He also acknowledged he understood the procedures and rights that were available to him and further acknowledged he understood he would be receiving an uncharacterized discharge. He waived his rights and elected to submit a statement in his own behalf. 9. In a statement, dated 13 September 1995, the applicant stated he wanted to go home in order to gain better employment and to be with his wife and family. He was experiencing a hard time with the training environment and the stress that came with it. 10. On 15 September 1995, the applicant's unit commander recommended the applicant be separated due to failure to meet minimum standards or failure to adapt due to emotional reasons. The intermediate commander recommended approval. 11. On 26 September 1995, the separation authority approved the applicant's separation with an uncharacterized character of service. 12. Accordingly, he was released from ADT on 2 October 1995 and he was returned to the WAARNG. He was credited with completing 4 months and 10 days of active service. He was issued a DD Form 214 showing his service was uncharacterized. 13. Orders 298-51, issued by the WAARNG on 25 October 1995 discharged him effective 3 October 1995, under the provisions of National Guard Regulation 600-200 (Personnel – General, Enlisted Personnel Management), paragraph 8-27z. His service was uncharacterized. 14. In the processing of this case, a staff advisory opinion was obtained from the Integrated Physical Evacuation System (IDES) Medical Director, Winn Army Community Hospital, Fort Stewart, GA on 26 April 2016. The IDES official, a medical doctor, stated: a. The applicant entered the military through the ARNG on 29 March 1995 and went to basic training at Fort Jackson, SC. He had several medical visits for different conditions that were identified in the Soldier's documents. On 31 May 1995, the applicant was seen with a history of chest pain with lead taste on his mouth after receiving his immunizations. This was considered to be indigestion and he was given Mylanta. He did not have a repeat episode. b. On 12 August 1995, the applicant was seen in the emergency room with hand and wrist pain after hitting a mirror in the bathroom due to being angry. X-rays were taken and were negative. He had swelling of his fingers and he was diagnosed with a contusion of the hand and wrist pain. He then followed-up on 14 August 1995 still complaining of wrist pain and was given cold compresses, Motrin, and a profile for 5 days. On 21 August 1995, he was again seen for his right wrist due to pain for 1 1/2 weeks. The examination did not show edema and it had good range of motion based on the medical note. He was given a brace and a profile for 7 days. On 13 September 1995, the applicant complained of his wrist hurting while doing push-ups; however, an examination was totally negative and the condition was considered resolved at that visit. c. The applicant was recommended for separation under chapter 11, AR 635-200, due to failure to meet minimum standards or failure to adapt due to emotional reasons. Based on the documentation submitted with this appeal, there were no medical reasons for the applicant to be discharged from the military at the time under a medical evaluation board (MEB). Even though the reason for his separation was emotional, there were no medical documents of any behavioral health condition that would have warranted a medical separation at that time nor was he physically impaired. d. The medical official did not recommend referral to an MEB due to lack of evidence that the applicant had any medical condition that would not allow him to continue his military training at Fort Jackson. 15. The advisory opinion was provided to the applicant on 31 May 2016. He did not respond. 16. There is no indication he applied to the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel from the Army. The regulation stated in: a. Chapter 11 – the criteria for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling. The regulation essentially required that the Soldier must had voluntarily enlisted; must be in basic, advanced individual, on the job or service school training, and must not had completed no more than 180 days of active duty on their current enlistment at the time his/her separation action was initiated. The Soldier could be separated when they had demonstrated that they were not qualified for retention due to failure to adapt socially or emotionally to military life; could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or had demonstrated character and behavior characteristics not compatible with satisfactory continued service. An uncharacterized description of service for separation under this chapter was required. b. Chapter 3 – described the different types of characterization of service. An uncharacterized separation was an entry-level separation. A separation would be described as an entry-level separation if processing was initiated while a member was in entry-level status, except when characterization under other than honorable condition was authorized under the reason for separation and was warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. For the purposes of characterization of service, the Soldier’s status was determined by the date of notification as to the initiation of separation proceedings. Upon enlistment, a Soldier qualifies for entry level status during the first 180 days (6 months) of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service. c. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. d. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code, Chapter 61, and Department of Defense Directive 1332.18 (Separation or Retirement for Physical Disability). It 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. a. If a Soldier was found unfit because of physical disability, the regulation provided for disposition of the Soldier according to applicable laws and regulations. b. Soldiers were referred into the PDES when it was determined that they did not meet physical fitness standards for enlistment, appointment and/or induction in accordance with chapter 2 of AR 40-501 (Standards of Medical Fitness), or they no longer met medical retention standards in accordance with chapter 3, AR 40-501. 3. AR 40-501 in effect at the time provided medical fitness standards for enlistment, induction and appointment of Soldiers into the Army. It also provided the medical fitness standards for retention and separation, including retirement. It stated transient, situational maladjustments due to acute or special stress do not render a Soldier unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty. A Soldier with a mood disorder (affective disorder) could be referred to an MEB if the symptoms were persistent and recurrence of the symptoms were sufficient to require extended or recurrent hospitalization, necessity for limitations of duty or duty in a protected environment or resulting in interference with effective military performance. DISCUSSION: 1. The applicant's separation action was initiated due to his failure to meet minimum standards or failure to adapt due to emotional reasons (adjustment disorder). After consulting with counsel, he acknowledged the reason for and the type of discharge he would receive. He was separated prior to completing 180 days (6 month) of active service and was still in an entry-level status. By regulation he received an uncharacterized character of service. 2. When separated under chapter 11 within the first 180 days, an uncharacterized description of service is normally required. An honorable characterization could be given only if the service clearly warranted that characterization by unusual circumstances of personal conduct and performance of military duty and was approved by the Secretary of the Army. 3. An entry-level status (uncharacterized) discharge means the Soldier has not served on active duty long enough for his or her character of service to be rated. He was released from active duty after completing 4 months and 10 days of active service. 4. The medical advisory opinion stated there was no medical justification for the applicant to be discharged from the military due to physical disability. Even though the reason for his separation was emotional disturbance, there was no evidence of hospitalization that could have warranted entry into the physical disability evaluation system. In addition, by regulation a situational maladjustment to military life may be the basis for an administrative separation but does not render a Soldier unfit because of physical disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003668 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003668 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2