IN THE CASE OF:	

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080013335 


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 his records be corrected to show the reason for his separation was involuntary early retirement.

2.  The applicant states, in effect, that after attending a Physical Evaluation Board (PEB) hearing in November 1992, he was medically retired from the U.S. Army and placed on the Temporary Disable Retired List (TDRL).  He is now a disabled American veteran with a service-connected disability.  His expiration term of service was extended so that he could complete the PEB.  His goal was to remain in the Army for at least 20 years, so the reason for separation should be involuntary early retirement.  He would also like for his records to reflect the necessary information to enroll his family in the TRICARE medical system.

3.  The applicant provides a copy of his separation document (DD Form 214), DA Form 199 (PEB Proceedings) and a memorandum for continuation on active duty beyond his expiration term of service date (22 June 1993).

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 military personnel records show he enlisted in the Regular Army on 10 June 1985.  He completed the necessary training and was awarded military occupational specialty 31M (Multichannel Transmission Systems Operator).  He served in various assignments to include an assignment with Headquarters and Headquarters Battery (HHB), 2nd Battalion, 62nd Air Defense Artillery in Germany.

3.  The applicant's record shows that between 17 August 1980 and 15 October 1991, he received several general counseling statements from his chain of command for dishonored checks, missing formations, lying on a sworn statement, and disobeying his chain of command.

4.  On 18 May 1992, the applicant's commander referred the applicant to a medical evaluation board due to the applicant's frequent seizures.  The medical evaluation board then referred the applicant to a PEB.  On 30 November 1992, a formal PEB found the applicant physically unfit due to a history of post traumatic seizure disorder with recurrent episodes in January, May, and November  
1992.  The PEB also recommended a disability rating of 40 percent and that the applicant be placed on TDRL.  The applicant concurred with the PEB's findings and recommendation.  

5.  Between 30 January 1991 and 14 April 1993 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for signing an official statement with the intent to deceive, failing to obey an order or regulation by having an unauthorized person in the billets, and disobeying a lawful order given by his first sergeant and a superior noncommissioned officer.

6.  While the applicant's disability separation was being processed, the applicant was also being processed for elimination due to his pattern of misconduct.

7.  The Department of the Army, U.S. Total Army Personnel Command Orders Number D252-2, dated 28 December 1992 shows that the applicant was placed on TDRL effective 26 January 1993.  Subsequently, these orders were revoked by Orders Number D5-46, dated 8 January 1993.



8.  On 21 January 1993, the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation
635-200 (Personnel Separations), paragraph 14-12b, for a pattern of misconduct.

9.  On 21 April 1993, the applicant was formally notified that he must appear before a board to determine whether he should be eliminated from further military service due to a pattern of misconduct.  

10.  The applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense, under the provisions of Army Regulation 635-200, paragraph 14-12b and its effect, of his rights available to him, and the effects of any action taken by him in waiving his rights.  He acknowledged he understood that he was entitled to have his case considered by an administrative separation board because he had six or more years of active or Reserve service at the time of separation and being considered for a separation under other than honorable conditions.  The applicant requested his case be considered by a board of officers.

11.  On 8 July 1993, the board of officers recommended that the applicant be discharged from the service because of misconduct under the provisions of Army Regulation 635-200 section III, chapter 14, paragraph 14-12b with the issuance of a General Discharge Certificate.  The separation authority approved the board's recommendation.

12.  On 13 July 1993, the decision was made by the U.S. Army Physical Disability Agency (USAPDA) that the applicant was ineligible for disability processing due to the nature of his recommendation for discharge. 

13.  On 26 July 1993, the applicant submitted an appeal through legal counsel to the USAPDA that states the applicant should not be denied disability processing because it would not be reasonable to preclude a Soldier from disability processing merely because he could receive an other than honorable discharge. The applicant's record does not contain a response from the USAPDA concerning legal counsel's appeal.

14.  On 17 August 1993, the applicant was discharged.  The DD Form  
214 he was issued shows his service was characterized as under honorable conditions due to a pattern of misconduct.  He completed 8 years, 2 months, and 8 days of Net Active Service This Period.

15.  The applicant applied to the Army Discharge Review Board (ADRB) on 
3 February 1995.  On 19 May 1997, the ADRB reviewed the applicant's record and determined that his discharge was improper as to characterization and reason for separation.  On that basis the applicant’s discharge was changed to an honorable discharge by reason of Secretarial Authority.

16.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

18.  TRICARE is available to active duty service members and retirees of the seven uniformed services, their family members, survivors and others who are registered in the Defense Enrollment Eligibility Reporting System (DEERS).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected to show the reason for his separation was involuntary early retirement.

2.  The evidence shows that the applicant had a history of NJPs and other acts of misconduct which led to him being processed for a discharge under other than honorable conditions due to a pattern of misconduct.  Appropriate authority determined that the applicant's physical disability was not the cause of his misconduct.  Accordingly, the applicant was properly discharged from active duty for reasons other than physical disability.

3.  Once a Soldier is discharged from active duty he and his family members lose eligibility for TRICARE.

4.  Although the ADRB upgraded the applicant's discharge to honorable that action did not imply that the applicant should have been medically retired.

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; therefore, he is not entitled to correction of his records to show involuntary early retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  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.




      _______ _   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)                                         AR20080013335



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ABCMR Record of Proceedings (cont)                                         AR20080013335



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