RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060012687 


	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.


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	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 general, under honorable conditions discharge (GD) of 14 June 2001 be changed to a medical discharge.  

2.  The applicant states, in effect, that he was separated by a unit that he was not even assigned to.  He further states that he should have been medically discharged instead of being separated for misconduct under the provisions of chapter 14, Army Regulation 635-200.  

3.  The applicant provides the following documents in support of his application:  Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293); Separation Document (DD Form 214); United States Army Transportation Center and Fort Eustis, Fort Eustis, Virginia, Orders Number (#) 156-0006, dated 5 June 2001; United States Army Transportation Center and Fort Eustis Orders # 037-00140, dated 6 February 2001; 
Separation Packet; Request Initiation/Removal of Suspension of Favorable Personnel Actions; Headquarters, 81st Regional Support Command Orders 
# 286-25L; Reports of Medial History (SFs 93); Reports of Medical Examination (SFs 88); Applicant Medical Prescreening (DD Form 2246); Display Patient Appointments; Department of Veterans Affairs (VA) Rating Decision; and Review Boards Agency Letter, dated 28 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 14 June 2001.  The application submitted in this case is dated 
7 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 initially enlisted in the Virginia Army National Guard (ARNG) on 6 February 1991.  He served in the ARNG for 1 year, 
3 months, and 26 days until being separated with a general, under honorable conditions discharge (GD), for unsatisfactory participation on 1 June 1992, at which time he was transferred to the United States Army Reserve (USAR) Control Group to complete his military service obligation.  On 13 October 1999, he was honorably discharged from the USAR.   

4.  On 2 November 2000, the applicant enlisted in the Regular Army (RA) and entered active duty on the enlistment under review.  He was trained in and awarded military occupational specialty (MOS) 88H (Cargo Specialist).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  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 he began his separation processing.  His MPRJ does contain a Report of Medical Examination (SF Form 88) and Report of Medical History (SF 93) that were prepared on 3 April 2001, during his separation processing.  The SF 88 contains normal evaluations in all areas of the Clinical Evaluation and that the applicant received an 111111 Physical Profile.  It also shows he determined to medically qualified for retention/separation by competent medical authority, and there is no indication that he suffered from any physically disqualifying medical conditions at the time he underwent this examination.  

7.  On 8 May 2001, the applicant’s unit commander notified him that separation action was being initiated to separate him under the provisions of chapter 14-12c, Army Regulation 635-200, by reason of misconduct.  The unit commander cited the applicant’s commission of a serious offense by testing positive for cocaine.  

8.  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 further acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a GD.  

9.  The separation authority approved the applicant’s separation, and directed that he receive a GD.  On 14 June 2001, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of chapter 14-12c, Army Regulation 635-200, by reason of misconduct.  At the time, he had completed a total of 7 months and 
13 days of active military service, and he held the rank of private/E-1 (PV1).  
10.  On 17 January 2003, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s case, determined his discharge was proper and equitable, and it voted to deny his request to upgrade and/or change the reason for his discharge.  

11.  The applicant provides the first page of a rating decision letter received from the VA, dated 20 April 2006.  This document shows he is receiving an overall combined disability rating of 30%; however, the service-connected medical conditions upon which this rating is based are not shown on the page provided.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets 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.  

13.  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.  

14.  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.

15.  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, which includes the abuse of illegal drugs 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 (UOTHC) 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 record of service.  

16.  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.  Further, the applicant's use of illegal drugs clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  

3.  The evidence also shows an ADRB review of the applicant's discharge resulted in a determination that his discharge was proper and equitable.  There also is no indication that the applicant raised a medical issue in his application and the ADRB did not note any medical issues during the discharge 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 17 January 2003, 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 16 January 2006.  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.



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          CHAIRPERSON




INDEX

CASE ID
AR20060012687
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/10
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
2001/06/14
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Chapter 14 
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.