IN THE CASE OF:	

		BOARD DATE:	  18 September 2008

		DOCKET NUMBER:  AR20080006825 

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her Chapter 13 (Unsatisfactory Performance) discharge be changed to a medical discharge.

2.  The applicant states, in effect, that she was diagnosed with a physical disability called Mitochondrial Myopathy that prevented her from performing her duties while she was in the military.  She also states, in effect, that she had this disability while she was in the military but only recently received an eye exam to determine what the problem with her eyes were.  She finally states, in effect, that this muscle disease also affects her eyes which prevented her from performing her duties as a Soldier. 

3.  The applicant provides a copy her DD Form 214 (Certificate of Release or Discharge From Active Duty); six pages of progress notes from the Advanced Eye Center; five copies of different views of her eye exams; two pages of an operative report from the Candler Hospital; seven pages of her confidential electronic medical records from the Department of Veterans Affairs Medical Center (VAMC); and a copy of an eye exam from the Mississippi Department of Rehabilitation Services, dated 27 October 2000 in support of this application.

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's DD Form 214 shows that she enlisted in the Regular Army on
27 February 1990.  She was awarded military occupational specialty (MOS) 72G (Data Telecommunications Operator).  The highest grade she held while on active duty was private first class (E-3). 

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

4.  The applicant's records show that on 21 November 1991 she a received Chapter 13 (unsatisfactory performance) counseling statement and a 90-day rehabilitative period for repeated failure to qualify with her assigned weapon.

5.  On 22 January 1992, the applicant’s unit commander notified her that he was initiating action to separate her under the provisions of Army Regulation
635-200, paragraph 13-2, for unsatisfactory performance based on repeated weapons qualifications failure.  The unit commander based this action on the applicant’s failure to qualify with her assigned weapon on five separate occasions.

6.  On 22 January 1992, the applicant consulted with legal counsel and was advised of the basis for the contemplated action and the rights available to her.  The applicant waived her right and submitted a statement on her own behalf.  She acknowledged that she understood that she would have less than 6 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.

7.  The applicant’s military medical record contains a Standard Form 88 (Report of Medical Examination), dated 24 January 1992 that shows the applicant underwent a separation medical examination and mild scoliosis (curvature of spine) was noted in the thoracic spine.


8.  The applicant’s military medical record contains a Standard Form 93 (Report of Medical History), dated 24 January 1992 that shows the applicant underwent a separation medical examination.  Item 11 (have you ever had or have you now) eye trouble is marked “yes.”  Item 25 (Physician’s Summary) shows that the applicant stated her “eyes get blurring when reading.”

9.  On 24 January 1992, a Mental Status Evaluation and a physical examination cleared the applicant for separation.

10.  On 13 February 1992, the appropriate authority approved the applicant’s separation recommendation, waived further rehabilitative efforts, and directed the issuance of an honorable discharge.  On 10 March 1992, the applicant was honorably discharged in pay grade E-3 under the provisions of Army Regulations 635-200, paragraph 13-2, by reason of unsatisfactory performance.  She had completed 2 years and 14 days of creditable active service.

11.  On 13 November 1996, the Army Discharge Review Board denied the applicant's petition for an upgrade of her discharge.

12.  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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.





DISCUSSION AND CONCLUSIONS:

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

2.  The available evidence shows the applicant was medically cleared for separation.  There is no evidence in the record and the applicant failed to provide evidence that shows she had a medical condition or sought medical treatment for a medical condition while on active duty that would have warranted consideration by a Medical Evaluation Board (MEB) or a Physical Disabilities Board (PEB).  Without a PEB, the applicant could not have been issued a medical discharge.

3.  The evidence of record also reveals that the applicant failed to qualify with her assigned weapon five times.  Therefore, it is concluded that her honorable discharge by reason of unsatisfactory performance accurately reflects her overall record of service.

4.  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.  

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.



      ____________X___________
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006825



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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