IN THE CASE OF:
BOARD DATE: 11 September 2008
DOCKET NUMBER: AR20080010738
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 that his general discharge be changed to a medical discharge.
2. The applicant states that he should have been medically discharged.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); numerous emails; sworn statements; and medical records.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having prior inactive and active service, the applicant was in the Army National Guard when he was ordered to active duty on 5 August 2003 in support of Operation Enduring Freedom. He served in Cuba from 8 September 2003 to 20 February 2004.
3. The applicant provided documentation which states he was diagnosed with chest pain in February 2004 and that further medical evaluation was recommended.
4. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, the applicants DD Form 214 shows that on 22 May 2004 he was discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. He had served a total of 1 year, 1 month, and 6 days of creditable active service.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
6. 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. Paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations.
2. Since the applicant was separated under a regulatory provision that authorized a characterization of discharge of under other than honorable conditions, it does not appear he was eligible for physical disability processing. Therefore, there is no basis for a medical discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ __xx___ ___xx___ 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.
______xxxx _______ ___
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) AR20080010738
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