APPLICANT REQUESTS The applicant claims that he is an

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					ABCMR Memorandum of                          AC94-11946
Consideration (cont)

APPLICANT REQUESTS: The applicant claims that he is an infantry
Captain in the Alabama State Defense Force. He requests, in effect,
a retroactive advancement to pay grade E-2. He states that at the
time of his relief from active duty [in 1980] regulations provided
for advancement to pay grade E-2 upon completion of 4 months of service
or completion of basic training.

The applicant also requests, in effect, payment for 2 1/2 days of
leave. He states that his DD Form 214 (Certificate of Release or
Discharge from Active Duty) and his payroll document failed to reflect
entitlement to or payment
of 2 1/2 days of leave.

The applicant also requests, in effect, that his relief from active
duty date be amended from 29 August 1980 to
8 September 1980. He states that he was released from active duty
with a severe eye problem, was treated by the VA at Tuskegee, Alabama
from 29 August 1980 to
8 September 1980. He declined surgery on 8 September. Army
regulations in effect at the time provided up to 6 months of benefits
for Army National Guard personnel who became sick on active duty
and required medical care.

EVIDENCE OF RECORD:    The applicant's military records show:

The applicant enlisted in the Alabama Army National Guard (ALARNG)
on 17 March 1980 for 6 years.

A 6 April 1979 report of medical examination indicates that the
applicant had defective distant and near vision, which was not
disqualifying, that he was medically qualified for enlistment in
the ARNG, with a waiver for 4 pounds overweight, and that he had
a physical profile of
1 1 1 1 1 1. In the report of medical history he furnished for the
examination, the applicant stated that his health was “Good”.

The applicant was ordered to active duty for training with a reporting
date to Fort Knox, Kentucky on 23 July 1980.

A 7 August 1980 report of psychiatric evaluation indicates that the
applicant exhibited signs of social/emotional maladjustment to the
military, had sleep/appetite disturbance, tearfulness, enuresis,
nervousness, and confusion. Those problems, coupled with his


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ABCMR Memorandum of                          AC94-11946
Consideration (cont)

difficulty in coping rendered him unable to deal effectively with
minimal amounts of stress. The examining official recommended that
the applicant be separated from the Army. The applicant was given
a temporary physical profile because of behavioral and attitudinal
problems which rendered him incapable of coping with the emotional
stress of military training.

A 8 August 1980 report of medical examination indicates that the
applicant was medically qualified for separation with a physical
profile of 1 1 1 2 2 1. In the report of medical history the applicant
furnished for the examination he stated that his health was “Fair”,
but that ears and tonsils were giving him trouble, that a pilonidal
cyst scar was painful because of physical training, and that he had
feet trouble since the 25th of August 1980. The report indicates
that he was discharged from the Navy on 10 March 1972 because of
unsuitability.

The applicant’s records fail to disclose any eye problems or eye
trouble while he was on active duty. His records fail to reveal
any leave information while on active duty.

On 11 August 1980 the applicant’s commanding officer initiated
proceedings to eliminate the applicant from the Army based on
unsuitability, in accordance with Army Regulation 635-200, paragraph
13-4b.

A 13 August 1980 report of mental status evaluation indicates that
the applicant had no significant mental illness, that he was mentally
responsible, able to distinguish right from wrong and adhere to the
right, and that he had the mental capacity to understand and
participate in board proceedings. He met the medical standards for
retention in the Army.

On 13 August 1980 the applicant consulted with counsel, stated that
he understood the basis for the contemplated action to separate him
for unsuitability, its effect, and the rights available to him.
He waived consideration of his case by a board of officers, and stated
that he understood the nature and consequences of the general
discharge that he might receive.

The applicant’s commanding officer recommended to the separation
authority that the applicant be administratively released from active
duty and immediately discharged from the Alabama National Guard due


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ABCMR Memorandum of                         AC94-11946
Consideration (cont)

to his inability to perform as a soldier during basic training.
That official stated that the applicant was extremely nervous and
unable to keep up with his peers. He stated that the applicant had
been counseled on seven occasions, for poor performance, for failure
of the physical fitness test, and for his inability to work or
cooperate with his peers. He was counseled by the unit chaplain
and by the community health administrator. His conduct and efficiency
were unsatisfactory.

On 26 August 1980 the separation authority approved the request to
release the applicant from active duty and return him to the control
of the ALARNG.

The applicant was relieved from active duty at Fort Knox, Kentucky
because of unsuitability-apathy, defective attitudes, or inability
to expend effort constructively, on 29 August 1980, under the
provisions of Army Regulation
635-200, paragraph 13-4c. He had 1 month, and 7 days of active
service, 25 days of prior active service, and
4 months and 6 days of prior inactive service. The applicant’s DD
Form 214 does not indicate accrued leave, but does indicate that
he was not paid for any accrued leave.

The applicant was discharged from the ALARNG with an honorable
character of service on 18 September 1980. He had 6 months and 2
days of service, and 25 days of prior service.

On 6 May 1994 the Army Discharge Review Board changed the reason
for the applicant’s discharge from, “unsuitability-apathy, defective
attitudes, or inability to expand effort constructively”; to
Secretarial Authority. The ADRB reasoned that the applicant was
notified he was being considered for separation under the provisions
of Army Regulation 635-200, paragraph 13-4b (personality disorder),
however, he was separated under the provisions of paragraph 13-4c
(apathy, etc.). Therefore, the reason for his discharge was
improper.

The ADRB denied the applicant’s request to change his separation
date to 8 September 1980, to amend his reason for separation to show
failure to meet entry level physical performance standards, and to
amend his entry physical, separation physical, and his record, to
reflect post traumatic stress disorder.



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ABCMR Memorandum of                          AC94-11946
Consideration (cont)

Army Regulation 635-200 sets forth the policy and
prescribes the procedures for administrative separation
of enlisted personnel. Chapter 13, in effect at that
time, applied to separation for unsuitability.      Paragraph 13-4c
provided for the separation for unsuitability of those individuals
who were apathetic (lack of appropriate interest), had defective
attitudes, did not have the ability to expend effort constructively.
 Paragraph 13-4b provided for separation for unsuitability for those
individuals who were determined to have a personality disorder.
When separation for unsuitability was warranted an honorable or
general discharge was issued as determined by the separation
authority based upon the individual's entire record.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that
for an individual to be found unfit by reason of physical disability,
he must be unable to perform the duties of his office, grade, rank
or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that
when a member is being separated by reason other than physical
disability, his continued performance of duty creates a presumption
of fitness which can be overcome only by clear and convincing evidence
that he was unable to perform his duties or that acute grave illness
or injury or other deterioration of physical condition, occurring
immediately prior to or coincident with separation, rendered the
member unfit.

Army Regulation 635-40 was changed by Department of the Army message,
dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during
processing for separation for reasons other than physical disability,
his continued performance of duty until he is scheduled for separation
creates a presumption that the member is fit for duty.

Army Regulation 630-5 prescribes leave policies and procedures.
Paragraph 3-1 of that regulation states that soldiers are entitled
to leave at the rate of 2 1/2 days for each month of active duty
or active duty for training.

DOD financial management regulation concerning leave states that
a member who is discharged under honorable conditions is entitled
to payment of unused accrued leave.



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ABCMR Memorandum of                          AC94-11946
Consideration (cont)

National Guard Regulation 600-200, then in effect, prescribes the
policies and procedures pertaining to promotion of National Guard
enlisted soldiers. Paragraph
6-12 of that regulation states that advancement to pay grade E-2,
unless prevented by the commander concerned, will be administratively
accomplished by the custodian of the individual’s personnel records
at the time the individual completes 6 months creditable service
from entry date on initial active duty date (IADT). Time spent
awaiting entry on IADT will not be counted in determining eligibility
for advancement to private E-2.

DISCUSSION: Considering all the evidence, allegations, and
information presented by the applicant, together with the evidence
of record, applicable law and regulations, and advisory opinion(s),
it is concluded:

1. The applicant had not completed six months creditable service
and therefore was not eligible for advancement to pay grade E-2.

2. It could be presumed that the applicant did not take leave during
his one month plus period of active duty. However, there is no
conclusive information one way or another in this matter. When the
applicant submitted his request to this Board, fourteen years had
passed since his discharge. It is the considered opinion of this
Board that the applicant had ample prior opportunity when he was
discharged, or shortly thereafter, to apply for payment of unused
leave. Due to the passage of time and the nonavailability of
information, favorable consideration of the applicant’s request for
payment of leave is barred by laches.

3. There is no available information to indicate that the applicant
had a severe eye problem or was treated for an eye problem while
he was on active duty. The report of medical examination, completed
just prior to his discharge, indicates that he was medically qualified
for separation. In the report of medical history the applicant
furnished for the examination, he made no mention of eye troubles.
 The applicant has offered no reason to retroactively amend his
separation date to 8 September 1980.

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



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ABCMR Memorandum of                       AC94-11946
Consideration (cont)

applicant has failed to submit evidence that would satisfy the
aforementioned requirement.

5. In view of the foregoing, there is no basis for granting the
applicant’s request.

DETERMINATION: The applicant has failed to submit sufficient
relevant evidence to demonstrate the existence of probable error
or injustice.

BOARD VOTE:

                       GRANT

                       GRANT FORMAL HEARING

                       DENY APPLICATION




                               Karl F. Schneider
                               Acting Director




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