BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090007212 


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, under honorable conditions discharge (GD) be changed to a medical discharge.

2.  The applicant states that his performance suffered after he was injured and his service medical records will prove this.  He claims his command did not help him with a medical evaluation board (MEB) and he was not properly referred to a physical evaluation board (PEB) to be separated for medical reasons rather than administratively separated.  

3.  The applicant further states that it is his belief that he should receive a medical discharge based on the injuries he suffered while serving on active duty, which prevented him from performing his duties.  He states the proper procedure would have been to refer him to the MEB and PEB process based on his back injury, which included numbness to his lower extremities and his right shoulder injury.  He claims he recently learned about the MEB and PEB process from a DAV [Disabled Americans Veterans] service officer and given what he understands now, he feels an error was made and he is hoping the Board will correct it.  

4.  The applicant provides Department of Veterans Affairs (VA) letters and medical documents from his VA claim file and a copy of his service medical record 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 military record shows he enlisted in the Regular Army (RA) and entered active duty on 3 November 1993.  He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).  It further shows he was advanced to the rank of private (PV2)/E-2, and that this was highest rank he attained while serving on active duty.  The record also shows he was reduced to the rank of that private (PV1)/E-1 for cause on 20 January 1995.

3.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  2 November 1994, for leaving his appointed place of duty without authority; 9 January 1995, for two specifications of disobeying lawful orders; and 17 January 1995, for larceny.   

4.  The applicant's record contains 13 DA Forms 4856 (General Counseling Forms), dated between 6 May 1994 and 7 February 1995, which show that members of the applicant's chain of command counseled him on a myriad of conduct and performance related misconduct, which included unsatisfactory appearance, missing formations, being absent from his place of duty, for violating Articles 80 (attempts), 86 (absent without leave (AWOL)), 91 (insubordination), 92 (failure to obey a lawful order), 107 (making a false official statement), 117 (provoking speech or gestures), and 134 (general articles) of the UCMJ, for being apprehended for larceny at the Fort Bliss [TX] Post Exchange, and on his overall performance.



5.  The applicant's record is void of any medical treatment records, or other documents that indicate he was ever treated for a disabling medical or mental condition during his active duty tenure.

6.  On 27 January 1995, the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, that he was fully alert and oriented, that he had an unremarkable mood, that his thinking process was clear, and that his memory was good.  The examiner also determined the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

7.  The applicant’s record also contains a Standard Form (SF) 88 (Report of Medical Examination), which documents his 3 February 1995 separation physical examination.  It shows he suffered from a right facial nerve paresthesia (an unusual or unexplained tingling, pricking, or burning sensation on the skin) and L5/S1 spondylosis (back pain) since June 1994.  It also shows that the examining physician determined the applicant was medically qualified for separation/
retention.  

8.  On 21 February 1995, the applicant was notified by his unit commander that action was being taken to separate him from the Army under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance.  He cited the basis for the separation action as the applicant’s NJP record and his failure to respond to extensive counseling for poor performance.

9.  On 21 February 1995, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of those rights.  Subsequent to this counseling he elected to waive his right to consulting counsel and elected not to submit a statement in his own behalf.

10.  The separation authority approved the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200, and directed the applicant receive a GD.  On 12 April 1995, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant on the date of his separation shows he was separated under the provisions of paragraph 13, Army Regulation 635-200, by reason of unsatisfactory performance.  It also shows that at the time, he had completed a total of 1 year, 5 months, and 10 days of creditable active military service.

12.  The applicant provides VA letters, dated 9 May 1995, 30 June 1995, 10 October 1995, 30 December 2008, 5 March 2009, and 11 March 2009, which show either individually or collectively that the applicant was granted a less than 10 percent service-connected rating for fracture of his right orbital rim.  These documents also show that his claim for service-connection for other conditions which included his back and right shoulder were not well grounded.

13.  The applicant also provides numerous extracts of VA and active duty medical record documents.  These documents detail his medical history and the treatment he received during and after his military service.  None of these documents indicate he suffered from any disabling condition that supported his separation processing through medical channels.

14.  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.  Members separated under these provisions could receive either a GD or an honorable discharge (HD).

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's Physical Disability Evaluation System (PDES) and sets forth the 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.  Paragraph 1-5 states, in pertinent part, that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  Paragraph 2-2b states, 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.

16.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states, in pertinent part, that 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.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his GD should be changed to a medical discharge because he suffered from conditions that would have warranted his processing through the Army's PDES at the time of his discharge has been carefully considered.  However, there is insufficient evidence that supports this claim.

2.  Although the applicant was treated for the medical conditions he outlines, there is no evidence of record that supports his claim that these conditions rendered him unfit to perform his military duties, or that they supported his separation processing through medical channels.  As a result, there is insufficient evidence to show he was suffering from a disabling condition that rendered him unfit to perform the duties of his grade and specialty, or that medically disqualified him from further service at the time of his separation.

3.  The evidence submitted by the applicant confirms the VA assigned him a disability rating for a service-connected medical condition and they are providing him medical care and benefits based on this medical determination.  However, a VA decision to provide the applicant a disability rating does not mean this condition was medically unfitting for retention or separation at the time of his separation, or that this condition supported his processing through medical channels at that time.

4.  The applicant’s separation processing was accomplished in accordance with the applicable regulation.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service. 

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 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)                                         AR20090007212



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ABCMR Record of Proceedings (cont)                                         AR20090007212



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