RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 July 2007
	DOCKET NUMBER:  AR20070001805 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael j. Fowler

Analyst


The following members, a quorum, were present:


Ms. Jeanette R. McCants 

Chairperson

Mr. Thomas H. Ray

Member

Mr. Jeffrey C. Redmann

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 reconsideration of an earlier appeal that his 
1993 discharge from the United States Army Reserve (USAR) be changed to a medical discharge.

2.  The applicant states, in effect, that he is providing new arguments and submitting new documents that show why he should have been medically discharged.  He further states that he would have never separated from the USAR before retiring if he had not had medical problems.  He was not given a physical before his discharge. 

3.  The applicant argues that he was called to active duty and sent to Egypt during Operation Bright Star in March 1985 and that the Army and the USAR knew of his medical condition.  He continues that he found out that the secretary of his reserve unit went through files, including his tossing out medical records.

4.  The applicant provides a Standard Form (SF) 88 (Report of Medical Examination), dated 26 February 1983; a back page of a SF 89 (Report of Medical History), dated 26 February 1983; and three SFs 600 (Chronological Record of Medical Care) with various treatment dates.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060004619, on 19 October 2006

2.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, all the evidence provided is new evidence which will be considered by the Board.

3.  Records show that the applicant enlisted in the Regular Army on 
21 September 1976. He successfully completed basic training and advanced individual training and was awarded military occupational specialty 76Y (Supply Specialist).  

4.  The applicant provides two SFs 600 with dates of treatment from 23 January 1978 to 8 June 1979 which shows that while on active duty he was treated for knee pain.

5.  On 12 September 1979, the applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) in pay grade 
E-4.  

6.  The applicant provides a SF 88, dated 26 February 1983, that shows he took a USAR physical examination.  The document shows he was qualified for retention and he had a physical profile for hearing.  

7.  The applicant provides a back page of a SF 89, dated 26 February 1983, which shows in item 33 (Have you ever had any illness or injury other than those already noted?) that he indicated "no" (the document does not show any illness or injury noted in the remarks column).

8.  A DD Form 4/1, dated 18 March 1990, shows in section B, item 8, that the applicant immediately reenlisted in the USAR for 3 years in the pay grade of E-4.

9.  A Chronological Statement of Retirement Points (CSRP), as of the retirement year ending (RYE) 22 July 1990, shows the applicant had completed a total of 
9 years of qualifying service for retirement purposes.

10.  The applicant was notified on numerous occasions by memorandum from his commander for unexcused absences from scheduled unit training assembly.  The last memorandum, dated 28 February 1992, shows that the 942nd Transportation Company informed the applicant he had been charged with 
16 unexcused absences within a one-year period.  His records indicate that he did not submit requests to be excused from any of the unit training assemblies.  

11.  The applicant's military records contain a Separation Checklist for Board Eligible Enlisted Personnel for Drug Use under AR 135-178.  This document indicates the applicant was being considered for separation for misconduct.

12.  The applicant's discharge proceedings are not available.

13.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, United States Army Reserve Command Orders 186-061, dated 7 July 1992, Fort McPherson, 
Georgia, show that he was discharged from the USAR under the provisions of 
Army Regulation 135-178 (Enlisted Administrative Separations) by reason of 

"NA," misconduct, with a characterization of service of under other than honorable conditions.  The orders further show that he was reduced from the rank of Specialist (SPC)/E-4 to the rank of Private (PVT)/E-1.  

14.  United States Army Reserve Personnel Center Orders D-03-324804, St. Louis, Missouri, dated 23 March 1993, shows that the applicant was honorably discharged from the USAR after his expiration of term of service.  The record shows no additional information regarding this separation action.

15.  On 25 February 2003, the Veterans Affairs (VA) rated the applicant as 
100 percent disabled due to cervical strain rating for aortic insufficiency status post aortic valve replacement.  However, this document does not indicate that he suffered from any disabling condition while in a qualifying duty status that would have supported his processing for retirement through medical channels during his military service.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  An exception may be made by the general court-martial convening authority if the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

17.  Title 10 USC 12731b provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part that in the case of a member of the selected Reserve or a RC who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, treat the member as having met the service requirements for non-regular retirement at age 60 and provide the member notification of retirement eligibility if the member has completed at least 15, and less than 20, years of qualifying service for non-regular retirement purposes


18.  Army Regulation 135-178, sets forth the basic authority for the separation of enlisted personnel.  Chapter 7 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, 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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

19.  Army Regulation 680-29 (Military Personnel, Organization, and Type of Transaction Codes) provides for the personnel status codes for USAR personnel not on active duty.  Section VII shows that Code "NA" means discharged because of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been given a medical discharge.  He provided military medical documentation that shows during his active duty service he was treated for pain to his knees.  He also provided military medical documentation that shows while serving in the USAR he had qualified for retention.  However, there is no evidence in the applicant's records or military medical documentation that shows he was unable to perform his military duties.  Therefore, he has not submitted sufficient evidence to show his commander or other proper authority determined he could not perform his duties.

2.  In addition, evidence of record shows that United States Army Reserve Command Orders 186-061, dated 7 July 1992, discharged the applicant from the USAR under the provisions of Army Regulation 135-178 by reason of misconduct with a characterization of service of under other than honorable conditions.  

3.  It appears the United States Army Reserve Personnel Center, St. Louis, Missouri, was not aware of the applicant's discharge in 1992 for misconduct and erroneously discharged him from the USAR after his completion of his last 3-year term of service that ended on 23 March 1993.

4.  Army Regulation 635-40, paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions 

5.  The applicant’s administrative separation is presumed to have been accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRM __  ___THR _  ___JC __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20060004619, dated 19 October 2006.




____ Jeanette R. McCants __
          CHAIRPERSON




INDEX

CASE ID
AR20070001805
SUFFIX

RECON

DATE BOARDED
31 JULY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
145.0600.0000
2.

3.

4.

5.

6.