BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090007590


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 his release from active duty by reason of convenience of the government (fiscal year 1992 early transition program) be changed to medical retirement or separation for medical reasons.

2.  The applicant states he “…never received medical clearance or check prior to discharge.”  He adds he is rated 40 percent disabled by the Department of Veterans Affairs (DVA) due to PTSD (post traumatic stress disorder) and hearing loss.

3.  The applicant provides a copy of a 10 November 2008 DVA 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 enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP) for 8 years on 9 December 1988.  On 9 January 1989, he was discharged from the USAR DEP and on 10 January 1989, he enlisted in the Regular Army (RA) for 3 years and 14 weeks.

3.  The applicant completed One Station Unit Training (OSUT) at Fort Benning, GA and he was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).  He was assigned to the 3rd Battalion, 27th Infantry, Fort Ord, CA.

4.  The applicant had numerous behavioral problems while on active duty, including:

	a.  receiving nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for violating the unit alcohol policy on or about 30 May 1989;

	b.  receiving a negative DA Form 4856 (General Counseling Form) on 14 June 1990 for disobeying an order;

	c.  receiving NJP for testing positive for cocaine on or about 21 January 1991 and 21 February 1991;

	d.  receiving a negative DA Form 4856 on 2 May 1991 for failure to report for duty; and

	e.  for indebtedness issues and writing dishonored checks on 20 May 1991.

5.  On 22 May 1991, the applicant’s commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) action which was subsequently approved on 27 May 1991.  The applicant did not appeal the approved bar action.

6.  The applicant requested voluntary separation under the early release program on 14 November 1991.  His request was approved and, on 2 March 1992, he was honorably released from active duty under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of for the “Convenience of the Government:  FY 92 Early Transition Program.”  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  His DD Form 214 

(Certificate of Release or Discharge from Active Duty) shows he served 3 years, 
1 month, and 23 days of active service.  Item 13 (Decorations, Medals, Badges, 
Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 also shows he was awarded the Combat Infantryman Badge [NOTE:  3rd Battalion, 27th Infantry deployed to Panama to participate in Operation Just Cause in 1989].

7.  The applicant’s service medical records are not available for review; however, there is no record that he ever processed through the Army Physical Disability Evaluation System (PDES), nor did he ever undergo a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) proceeding.

8.  Title 10, U.S. Code, chapter 61 provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency (USAPDA), under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating PDES and executes Secretary of Army decision-making authority as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with DoD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The objectives of the PDES are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  A Soldier is referred into the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; receive a permanent medical profile and are referred by an MOS/Medical Retention Board (MMRB); are command-referred for a fitness for duty medical examination; or referred by the Commander, USAHRC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his separation changed to medical retirement or separation by reason of medical disability.

2.  There is no evidence of record, and the applicant has not provided any evidence, that he was ever referred to the Army’s PDES for disability processing.

3.  The fact that the DVA has rated the applicant service-connected disabled in 2008 has no relevance to the applicant’s ability to perform his duties in 1992.

4.  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)                                         AR20090007590



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ABCMR Record of Proceedings (cont)                                         AR20090007590



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