IN THE CASE OF:	  

		BOARD DATE:	  14 May 2009

		DOCKET NUMBER:  AR20090000150 


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 general under honorable conditions discharge (GD) of 29 October 2002 be changed to an honorable discharge (HD) and that the reason for his separation be changed from unsatisfactory performance to medical.

2.  The applicant states, in effect, he suffered from medical problems that were aggravated or caused by military service which caused his unsatisfactory performance.

3.  The applicant provides military and Department of Veterans Affairs (VA) medical treatment records and a VA Rating Decision in support of his 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 record shows he enlisted in the Regular Army and entered active duty on 28 September 1999.  He was trained in and awarded military occupational specialty 88M (Motor Transport Operator).

3.  The applicant's record shows that specialist was the highest rank he was advanced to and/or held while serving on active duty.  It also shows that he was reduced to private first class (PFC) on 7 January 2002 and that this was the rank he held on the date of his discharge.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 21 December 2001 for two specifications of disobeying lawful orders and one specification of making a false statement.  His punishment for these offenses was a reduction to PFC (suspended), forfeiture of $304.00 (suspended), 90 days of extra duty, and an oral reprimand.

5.  On 7 January 2002, the suspended portion (reduction and forfeiture) of the punishment imposed in the NJP action of 21 December 2001 was vacated based on the applicant willfully disobeying a lawful order on 23 December 2001.

6.  The record also shows that the applicant was formally counseled by members of his chain of command on at least 25 separate occasions for a myriad of performance and conduct related issues and disciplinary infractions between 29 September 2000 and 24 June 2002.

7.  The applicant's record is void of any medical treatment records or other documents indicating that he suffered from any medically disabling or disqualifying conditions at the time of his discharge.  A DD Form 2697 (Report of Medical Assessment) completed on 9 June 2002 noted mild bulges at the L3-4, L4-5, L5-S1 [lumbosacral vertebrae].  A DD Form 2808 (Report of Medical Examination) shows that the applicant underwent a separation medical examination on 6 September 2002 and that other than disc bulges to L3-4/
L4-5/L5-S1, his examination was normal.  The examining physician determined the applicant was medically qualified for retention/separation.

8.  On 27 September 2002, the unit commander notified the applicant that he intended to recommend the applicant for separation under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), by reason of unsatisfactory performance and that he receive a GD.  He cited the applicant's Article 15, repeated failure to follow orders, incidents of disrespect, numerous false statements, numerous failures to repair, and substandard military appearance and military bearing as the reasons for taking the separation action.
9.  On 27 September 2002, the applicant acknowledged receipt of the separation action notification.  He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the right to waive those rights.

10.  On 2 October 2002, the unit commander submitted the separation action on the applicant.  The separation authority approved the applicant's separation under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance and directed that the applicant receive a GD.  On 29 October 2002, the applicant was discharged accordingly.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed a total of 3 years, 1 month, and 2 days of active military service and that he earned the National Defense Service Medal, Army Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.

12.  The applicant provides several medical treatment records that show he was treated for low back pain related issues and other ailments and illnesses between December 2001 and his separation.  None of the treatment records indicate the medical conditions for which he was treated were disabling or disqualifying for further service.  He also provides a VA Rating Decision, dated 10 January 2003, which shows he was granted a 40-percent disability rating for degenerative joint disease lumbosacral spine.  Service connection for residuals for right ankle sprain was denied.

13.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel of the Army.  Chapter 13 contains the policy 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.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.  

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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.  Separation by reason of disability requires processing through the PDES.

16.  Chapter 3 of Army Regulation 635-40 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that 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.

17.  Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

18.  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.  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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge based on medical conditions that were aggravated or occurred while he was serving on active duty was carefully considered.  However, there is insufficient evidence to support these claims.

2.  By regulation, the mere presence of impairment does not, in and 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.

3.  The evidence of record shows the applicant's separation processing under the provisions of chapter 13, Army Regulation 635-200, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further confirms that the applicant was only discharged for unsatisfactory performance after he had undergone a comprehensive separation medical examination, which included evaluation of his back condition, which resulted in his being cleared for separation by competent medical authority.

4.  The medical evidence of record and the independent medical evidence provided by the applicant, while showing his back condition was treated and evaluated prior to separation, fail to show this condition or any other condition or illness he suffered from at the time of his discharge was sufficiently disabling to disqualify him from further service or to support his separation processing through medical channels.

5.  The medical records provided by the applicant outline medical treatment he received while he was on active duty.  However, they fail to show that any of the conditions for which he was treated were physically disabling and warranted his separation processing through the PDES at the time of his discharge.  The VA Rating Decision he provides shows he was granted service connection with a 
40-percent disability rating from the VA for degenerative joint disease lumbosacral spine; however, the military medical treatment records on file and provided by the applicant confirm these conditions were treated and evaluated while he was on active duty and were determined not to be physically disabling by competent medical authority.

6.  The applicant is advised that 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards applied by military medical authorities at the time of his discharge.  As a result, the VA is the appropriate agency to provide him medical treatment and disability compensation for service-connected medical conditions that were not found permanently disabling at the time of his discharge.

7.  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 this requirement.

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)                                         AR20090000150



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ABCMR Record of Proceedings (cont)                                         AR20090000150



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