RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060011238 


	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.


X

	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 in effect, that his under honorable conditions (general) discharge (GD) of 3 March 1992 be changed to a medical discharge.  

2.  The applicant states, in effect, that the reason for his separation from the military should be changed to medical vice misconduct.  He states that he was convicted of a crime stemming from his disabilities prior to his deployment in support of Desert Storm.  He claims that upon his return stateside, his life was ruined when he was thrown away by his command.  He was given 2 years probation and released from active duty (REFRAD) broke and helpless.  He further states that his disabilities required medication and therapy, not removal from active duty. 

3.  The applicant provides no additional documentary evidence in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the reason for the applicant's discharge be changed from misconduct to medical.  

2.  Counsel states, in effect, that the applicant avers that his disability occurred prior to his combat service in Desert Storm, was aggravated by that service, and that he also became further disabled as a result of the stress caused by the handling of his case upon return from combat.  

3.  Counsel provides the application on behalf of the applicant.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 3 March 1992.  The application submitted in this case is dated 
1 August 2006.


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 limitations 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.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 27 August 1986.  He was trained in and awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  His record also shows he was promoted to specialist four (SP4) on 27 December 1987, and that this is the highest rank he held while serving on active duty.  It also shows he was reduced to private/E-1 (PV1) on 12 February 1992, and that this is the rank he held upon his separation from active duty.  

4.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any medical treatment records that show he suffered from a disabling medical or mental condition that rendered him unfit for further service at the time of his separation processing.  

5.  On 27 December 1990, the applicant was convicted of attempted indecent liberties with a child in the District Court of Riley County, Twenty-First Judicial District of Kansas.  The applicant was sentenced to the custody of the Secretary of Corrections for a period of not less than two years or more than five years.

6.  On 9 October 1991, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of chapter 14-5, 
Army Regulation 635-200, for misconduct.  The unit commander cited the reason for his proposed action was the applicant's conviction by civil authorities for actions chargeable under Article 134, Uniformed Code Military Justice for indecent acts or liberties with a child.

7.  On 12 November 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect of a waiver of those rights.  The applicant voluntarily waived consideration of his case by an administrative separation board (ASB) contingent upon receiving a GD.  

8.  On 19 December 1991, the applicant's conditional waiver was disapproved and the appropriate convening authority directed an ASB be convened in separation action pertaining to the applicant. 

9.  On 22 January 1992, an ASB convened to consider the applicant’s case.  The applicant and his counsel were present at the proceedings.  After carefully considering all the evidence submitted and the testimony presented, the ASB recommended the applicant be discharged under the provisions of 
Army Regulation 635-200, chapter 14, by reason of conviction by civil court and that he receive an under other than honorable conditions (UOTHC) discharge.  

10.  On 12 February 1992, the separation authority approved the findings and recommendations of the ASB, and recommended the applicant be separated under the provisions of paragraph 14-5(a) 2, Army Regulation 635-200, by reason of conviction by civil court and that he receive an UOTHC discharge.  

11.  On 13 March 1992, the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of civil conviction.  The 
DD Form 214 he was issued at the time shows he completed a total of 5 years and 3 months of creditable active military service and that he accrued 100 days of time lost due to imprisonment.  

12.  On 10 December 1996, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge and reason were inequitable. The ADRB determined that at the time, his UOTHC discharge was inconsistent with the overall quality of the faithful and honorable service rendered by the applicant during the period of service under review.  Full consideration was given for all of the applicant's service to include his continued superior performance during Desert Storm.  The Board further determined that the applicant's generally acceptable personal conduct and predominately superior performance of duty mitigated the discrediting information in his service record.  Therefore, it voted to grant partial relief by changing his characterization of service to general, under honorable conditions and the reason for separation to misconduct.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied 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.  

14.  Chapter 3 of the same regulation provides guidance on presumptions of fitness.  It states that the mere presence of 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.  Separation by reason of disability requires processing through the PDES.  

15.  Chapter 4 of the same regulation further states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

16.  Army Regulation 635-200 (Personnel Separations) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier’s overall records.

17.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge was carefully considered.  However, the evidence of record is void of any medical treatment records or other documents that indicate he suffered from a physically disabling condition that rendered him unfit to perform his military duties at the time of his discharge that would have warranted his processing through the Army’s PDES.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable law and regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  It further shows a properly constituted ASB, after hearing all testimony and arguments from the applicant and his counsel and considering all the evidence, recommended the applicant be separated for misconduct based on his civil conviction.  As a result, the applicant's discharge for misconduct was directed, and he was properly separated under the provisions of chapter 14, Army Regulation 635-200. 

3.  Further, the record shows the ADRB found the applicant's UOTHC discharge was inequitable based on his overall record of service, and it voted to upgrade his discharge to a GD.  The applicant did not raise and the ADRB fail to note any medical issues during the ADRB application and review process.  

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 the aforementioned requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 December 1996, the date he exhausted administrative remedies through the ADRB.  Therefore, the time for him to file a request for correction of any error or injustice expired on 9 December 1999.  He failed to 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 timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X   __X __  __X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____X____
          CHAIRPERSON




INDEX

CASE ID
AR20060011238
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/10
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1992/03/03
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Ch 14 Civil Conviction
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.

2.

3.

4.

5.

6.