RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20060016530


      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.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Chester A. Damian             |     |Member               |

      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, to change her discharge to medical,
to be medically retired, and to be restored to the grade of E-4.

2.  The applicant states, in effect, that her medical condition was not
correctly identified while she was on active duty.

3.  The applicant provides a copy of her DD Form 214 (Certificate of
Release or Discharge from Active Duty), a self-authored statement, and
copies of Automated SF Forms 600E (Health Record – Chronological Record of
Medical Care) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 August 2003, the date of her discharge from active
duty.  The application submitted in this case is dated 7 November 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 DD Form 214 shows she enlisted in the Regular Army on
30 December 1998.  She completed the required training and was awarded
military occupational specialty (MOS) 97B (Counterintelligence Agent).  The
highest rank she attained while serving on active duty was Specialist (E-
4).

4.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

5.  The Standard Form 600E, dated 27 June 2001, shows that the applicant
was seen in the Primary Care Clinic regarding pain in her lower back for 28
months.  The applicant was referred to the Lower Back Pain Class for follow
-up.


6.  The Standard Form 600E, dated 30 July 2001, shows that the applicant
was seen in the Physical Therapy Clinic and no follow up was scheduled.

7.  The applicant's records also show that she was given 18 General
Counseling Forms during the period from 4 March 2002 to 20 August 2002 for
various offenses, including failure of two Army Physical Fitness Tests
(APFT), being out of uniform, being absent from her appointed place of
duty, insubordination, disrespect towards a commissioned officer, and lack
of motivation.

8.  On 19 April 2002, two DA Forms 268 (Report to Suspend Favorable
Personnel Actions (FLAG)) were initiated against the applicant by reason of
enrollment in the weight control program and for APFT failure.

9.  On 19 June 2002, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ), for disobeying a lawful order.  The resultant sentence was
reduction to the rank of private first class/pay grade E-3, a forfeiture of
$342.00 pay, 14 days extra duty, and 14 days restriction to the
installation area.

10.  A memorandum for record from the Wiesbaden Health Clinic, dated
3 December 2002, shows that the applicant was seen in their clinic
regarding her chapter 13 physical.  The Deputy Commander for Clinical
Services discovered that the applicant had a problem with her thyroid that
may or may not have contributed to her fatigue, difficulty with the run,
and her weight gain.  The Deputy Commander recommended that the applicant’s
separation process be delayed for 4 months in order to investigate if her
shortcomings were a result of a medical condition.

11.  A memorandum for record, dated 3 April 2003, from the Deputy Commander
for Clinic Services shows that the applicant had an elevated thyroid level,
was prescribed synthetic thyroid medication, and was scheduled to see the
endocrinologist at the end of April 2003.  The Mental Status Evaluation and
a physical examination, dated 3 April 2003, cleared the applicant for
separation.

12.  On 23 June 2003, the unit commander notified the applicant that he was
initiating action to separate her from the service with an honorable
discharge under the provisions of AR 635-200, Chapter 13, by reason of
unsatisfactory performance.  The unit commander based this action on the
applicant’s disciplinary history, which included one NJP and 18 formal
counseling sessions for a myriad of performance and conduct related
infractions.

13.  On 25 June 2003, the applicant waived the right to consulted with
legal counsel and was advised of the basis for the contemplated action to
accomplish separation for Unsatisfactory Performance under the provisions
of AR 635-200, Chapter 13, paragraph 13-2, and it effects; of the rights
available to her; and the effects of any action taken by her in waiving her
right to submit statements on her own behalf.  She understood that she
would have less than six years of total active and/or reserve military
service at the time of separation; therefore, she was not entitled to have
her case heard by a board of officers.  She also understood that she may
expect to encounter substantial prejudice in civilian life if a less than
honorable discharge was issued to her.  The applicant also understood that
she would be ineligible to apply for enlistment in the United States Army
for a period of two years after discharge.

14.  On 10 July 2003, the separation authority approved the separation,
waived rehabilitation and directed that the applicant be separated with an
honorable discharge.  On 2 August 2003, the applicant was discharged under
the provisions of AR 635-200, Chapter 13, with an honorable discharge.  The
DD Form 214, she was issued confirms she completed a total of 4 years,
7 months, and
3 days of creditable active military service.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the
requirements and procedures for administrative discharge of enlisted
personnel.  Chapter 13 of this regulation, in effect at the time, provides
for separation due to unsatisfactory
performance when in the commander’s judgment the individual will not become
a satisfactory Soldier; retention will have an adverse impact on military
discipline, good order and morale; the service member will be a disruptive
influence in the future; the basis for separation will continue or recur;
and/or the ability of the service member to perform effectively in the
future, including potential for advancement or leadership, is unlikely.
Service of Soldiers separated because of unsatisfactory performance under
this regulation will be characterized as honorable or under honorable
conditions.

16.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  Consequently, due to the two concepts involved, an
individual's medical condition, although not considered
medically unfitting for military service at the time of processing for
separation, discharge or retirement, may be sufficient to qualify the
individual for VA benefits based on an evaluation by that agency.

17.  The award of VA compensation does not mandate disability retirement or
separation from the Army.  The VA, operating under its own policies and
regulations, may make a determination that a medical condition warrants
compensation.  The VA is not required to determine fitness for duty at the
time of separation.  The Army must find a member physically unfit before he
or she can be medically retired or separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be
insufficient in merit.

2.  The evidence of record shows that the applicant received 18 General
Counseling statements, received two FLAGs suspending favorable personnel
actions, and one nonjudical punishment.

3.  The applicant’s records shows that she was reduced by nonjudical
punishment to private first class/pay grade E-3, effective 19 June 2002.

4.  The applicant's records do not show that she was promoted to or
eligible for promotion to SPC/E-4 prior to her separation from active duty
on 2 August 2003. In the absence of evidence to the contrary, it is
concluded that the applicant’s separation document dated 2 August 2003 is
correct.  Therefore, her records should not be corrected to show her
rank/pay grade as SPC/E-4.

5.  There is no evidence that shows the applicant’s Flags were removed
prior to her separation from active duty.  Therefore, her records should
not be corrected to show her rank/pay grade as SPC/E4.

6.  There is no evidence of record that shows the applicant sought follow-
up medical care for her Hashimoto’s thyroiditis after 3 April 2003.  There
is no evidence of record that shows the applicant sought follow-up medical
care for her lower back pain after 31 July 2001.  There is no evidence of
record that the applicant was referred to a medical evaluation board.
Therefore, she is not entitled to a medical discharge.


7.  The applicant’s contention that the VA decision she received supported
a medical discharge and the supporting documents she provided were
carefully considered.  However, this factor alone does not provide a basis
to grant the requested relief.

8.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects her overall record of
undistinguished service.

9.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 August 2003.  As a result, the time
for the applicant to file a request for correction of any error or
injustice to this Board expired on 1 August 2006.  However, the applicant
did not 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

__LDS___  __JRS __  ___CAD_  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.




                                        _Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016530                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/06/5                               |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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