RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20080000847 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Peter B. Fisher

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, in effect, that his general discharge be upgraded to honorable. 

2.  The applicant states, in effect, that his general discharge under honorable conditions is inconsistent with his being a physically disabled veteran who suffers with stress induced seizures.  It further appears that he is implying that his medical condition should have qualified him for a separation based on his medical condition. 

3.  The applicant provides no supporting documentation.

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.  On 2 July 1981, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 76Y (Supply Specialist). 

3.  On 2 February 1982, the applicant was assigned to Fort Bragg, North Carolina.

4.  On 9 June 1983, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for missing formation and for willful disobedience of a noncommissioned officer.  The punishment included reduction to private, pay grade E2 (suspended), forfeiture of $164.00 pay per month for 1 month, and 14 days restriction and extra duty.


5.  On 26 August 1983, the applicant received NJP for not reporting for duty.  The punishment included reduction to private, pay grade E2 (suspended), forfeiture of $149.00 pay per month for 1 month (suspended), and 14 days restriction and extra duty.

6.  On 11 November 1983, the applicant received NJP for being absent without leave (1 day).  The punishment included reduction to private, pay grade E-1, forfeiture of $125.00 pay per month for 1 month, and 14 days restriction and extra duty.

7.  On 26 November 1983, the applicant received NJP for unlawful disposal of military property valued at $22.86.  The punishment included forfeiture of $100.00 pay per month for 1 month, and 14 days restriction.

8.  On 6 January 1984, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  

9.  On 9 January 1984, the applicant consulted with counsel, and elected to make a statement in his own behalf.  Any statement that he may have made is not available for review.

10.  On 10 January 1984, a medical examination found him to be qualified for separation with a physical profile of 1-1-1-1-1-1.  A summary of defects and diagnoses stated that the applicant suffered from several episodes of shoulder dislocation and seizure disorder.   A mental status evaluation found that the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was
mentally responsible.  He was able to distinguish right from wrong and to adhere to the right and capable of participating in the separation processing.

11.  The applicant’s Report of Medical History, dated 10 January 1984, contains no indication that he suffered from epilepsy, fits, or any other kind of seizures.

12.  On 23 January 1984, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. He further directed that the applicant not be transferred to the Individual Ready Reserve.



13.  Accordingly, the applicant was discharged under honorable conditions on 
27 January 1984.  He had completed 2 years, 6 months and 26 days of creditable active service.

14.  Item 4 (Assignment considerations) of the applicant’s Personnel Qualification Record (DA Form 2-1) contains the entry “Seizure Disorder: No assignment where sudden loss of consciousness would be dangerous to self or others such as work on scaffolding, handling of ammunition, vehicle driving, or work near moving machinery.” 

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

16.  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.

17.  Army Regulation 635-40 provides, in pertinent part, that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  Records show that the applicant’s duties were to be limited to those activities that were compatible with his medical condition, but he was not physically unfit because he could still perform duty.

4.  The applicant has not provided any evidence or sufficiently mitigating argument to support his implied contention that his medical condition at the time of his discharge warranted either an honorable characterization of service or a physical disability separation.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ PBF_ __  __JCR __  __ENA _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






___    Eric N. Andersen ___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.