RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009265 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Gerald J. Purcell

Member

Mr. John G. Heck

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 that his general discharge under honorable conditions be changed to a medical separation or upgraded to fully honorable.

2.  The applicant states that his medical records show he had back problems.  He has had two back operations since his separation.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 8 April 1982 for 4 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 15 October 1984, the applicant was placed on the weight control program. Medical personnel determined that the cause of his overweight condition was not due to a medical disorder.  

4.  On 31 October 1984, the applicant was counseled for his below standards job performance and his bad attitude with others (he did not have a bad attitude towards the counselor).

5.  On 5 November 1984, the applicant was counseled for falling out of company physical training.

6.  On 8 January 1985, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for being derelict in the performance of his duties by willfully failing to remain on guard until properly relieved and for being disrespectful in language towards his superior noncommissioned officer.
7.  On 13 March 1985, the applicant’s commander initiated separation proceedings on him under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  His recommendation cited the applicant’s total lack of discipline, professionalism, and good judgment.

8.  On 2 April 1985, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He elected not to submit a statement in his own behalf.  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were to be issued to him.

9.  The appropriate authority approved the recommendation and directed that the applicant be given a General Discharge Certificate.

10.  On 3 May 1985, the applicant was discharged, in pay grade E-1, under     the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance, with a general discharge under honorable conditions.  He had completed 3 years and 26 days of creditable active service and had no lost time.

11.  The applicant’s service medical records are not available.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  Army Regulation 635-40 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.  In pertinent part, it states that the mere presence of an 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service medical records are not available; therefore, it cannot be determined what his medical condition was during his service or at the time of his separation or that any medical condition rendered him unable to perform his duties.  It is noted that he was given an opportunity to submit a statement during the separation process, and he failed to take that opportunity to state that his back condition resulted in his poor job performance.

2.  The applicant was counseled in writing on two occasions for his below standards job performance, his bad attitude with others, and his falling out of company physical training.  He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for being derelict in the performance of his duties and for being disrespectful in language towards his superior noncommissioned officer.

3.  There is insufficient evidence to show that the applicant’s record of service warrants an upgrade of his discharge to fully honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __gjp___  __jgh___  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 for correction of the records of the individual concerned.



__William D. Powers___
          CHAIRPERSON



INDEX

CASE ID
AR20070009265
SUFFIX

RECON

DATE BOARDED
20071127
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19850503
DISCHARGE AUTHORITY
AR 635-200, ch 13
DISCHARGE REASON
A04.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.
108.00
3.

4.

5.

6.