RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070014365 


	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. Patrick H. McGann

Chairperson

Ms. Eloise c. Prendergast

Member

Mr. Michael J. Flynn

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 the narrative reason for his discharge be changed.

2.  The applicant states that “Secretarial Authority” is too broad of a discharge reason.  It needs to state that he was discharged for hardship or for a medical condition.  He has been denied his educational benefits and other benefits.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) does not address his medical condition or his hardship during his service.  The Department of Veterans Affairs (VA) has granted him service connection.

3.  The applicant provides a letter, dated 10 September 2007, from the VA; one page from his VA Rating Decision; an undated letter to the VA; and his DD Form 214.

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 6 July 2000 for 5 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 31R (Multi-Channel Transmission Systems Operator/Maintainer).

3.  The applicant’s service medical records are not available.  His separation packet is not available.  On 25 September 2002, the U. S. Total Army Personnel Command approved a request for early separation pertaining to the applicant and stated the narrative reason for separation would be “Secretarial Authority.”  

The approval action noted that a member of the Judge Advocate General’s Corps counseled the applicant and explained the impact of his request for voluntary separation.

4.  On 4 October 2002, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-3, with a narrative reason for separation of Secretarial Authority.

5.  On 30 August 2005, the VA awarded the applicant service connection for human immunodeficiency virus (10 percent) and hepatitis B (10 percent).

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 states that the Secretarial plenary authority for separation is the prerogative of the Secretary of the Army.  It is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies and early separation is clearly in the best interest of the Army.  Separations may be voluntary or involuntary.  

7.  Army Regulation 635-200, chapter 6, states in pertinent part that a Soldier may be separated for hardship when, in circumstances not involving death or disability of a member of the Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  The supporting evidence for an application for separation because of hardship normally will be in affidavit form.  The evidence must substantiate the hardship conditions.

8.  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 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.

9.  Title 38, U. S. 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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service medical records and his separation packet are not available, and he did not provide those documents.  The only thing about his 
separation that is known is that he requested separation for an unknown reason. Without having those documents to consider, and in the absence of any evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and that he was given the proper narrative reason for separation.

2.  It is also noted that the separation approval action noted that a member of the Judge Advocate General’s Corps counseled the applicant and explained the impact of his request for voluntary separation.

3.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions.  

4.  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.

5.  There is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.




__xxxxxxx___
          CHAIRPERSON




INDEX

CASE ID
AR20070014365
SUFFIX

RECON

DATE BOARDED
20080220
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.02
2.

3.

4.

5.

6.